The Prevention of Torture: An Ecological Approach 1108470459, 9781108470452

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the prevention of torture There is an urgent need to analyze and assess how we prevent torture against the background of a rigorous analysis of the factors that condition and sustain it. Drawing on rich empirical material from Sri Lanka and Nepal, The Prevention of Torture: An Ecological Approach interrogates the worlds that produce torture, in order to propose how to bring about systemic institutional and cultural change. Critics have decried human rights approaches’ failure to attend to structural factors, but this book seeks to go beyond a “stance of criticism” to take up the positive project of reimagining human rights theory and practice. It discusses key debates in human rights and political theory, as well as the challenges that advocates face in translating situational analyses into real-world interventions. Danielle Celermajer develops a new, ecological framework for mapping the worlds that produce torture, thereby laying the foundations for developing effective and sustainable prevention strategies. Danielle Celermajer is Professor of Sociology and Social Policy at the University of Sydney. She received a grant from the European Union to establish a Masters of Human Rights and Democratization in the Asia Pacific and an EU grant to lead a multidisciplinary project on the prevention of torture. Her books include Sins of the Nation and the Ritual of Apology (Cambridge University Press, 2009), Power, Judgment and Political Evil: Hannah Arendt’s Promise (2010) with Andrew Schaap and Vrasidas Karalis, and A Cultural History of Law in the Modern Age (forthcoming) with Richard Sherwin.

The Prevention of Torture an ecological approach DANIELLE CELERMAJER University of Sydney

University Printing House, Cambridge cb2 8bs, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, USA 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108470452 doi: 10.1017/9781108556583 © Danielle Celermajer 2018 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2018 Printed in the United States of America by Sheridan Books, Inc. A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data names: Celermajer, Danielle, author. title: The prevention of torture : an ecological approach / Danielle Celermajer. description: Cambridge, United Kingdom ; New York, ny : Cambridge University Press, 2018. | Includes bibliographical references and index. identifiers: lccn 2018011059 | isbn 9781108470452 (hardback : alk. paper) subjects: lcsh: Torture – Prevention – Sri Lanka. | Torture – Prevention – Nepal. | Human rights – Sri Lanka. | Human rights – Nepal. | mesh: Torture | Human Rights Abuses – prevention & control | Human Rights | Social Environment | Models, Theoretical | Nepal | Sri Lanka classification: lcc hv8599.n35 c45 2018 | ddc 364.6/75–dc23 LC record available at https://lccn.loc.gov/2018011059 isbn 978-1-108-47045-2 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

For Niusha and Krysha and the girls who did not come out

Contents

page ix xii

Acknowledgments List of Abbreviations Introduction

1

Vignette 1 1

27

The Principal Approaches to Preventing Torture Vignette 2

2

67

How Effective Has Torture Prevention Been? Vignette 3

3

The Situational Conditions of Institutional Violence

The Production of Worlds of Torture

145 186

Agents, Structures, and the Social Imaginary of Human Rights Vignette 6

6

101 143

Vignette 5 5

69 99

Vignette 4 4

30

188 231

Taking Situational Theory to the Field

vii

233

viii

Contents

Vignette 7 7

The Promises and Hazards of Practice

278 280

Vignette 8

308

Conclusion

309

References

330

Index

351

Acknowledgments

The thinking and the action that went into the writing of this book have been more of a collaborative effort than any reader, and most writers, might imagine. From the inception of the idea of trying to work out what it would look like in practice to take a situational approach to preventing torture, through turning that idea into a concrete plan, obtaining funding that would make it possible to realize that plan, carrying it out, and then reflecting back on it, other minds and hands have been intimately involved. Nothing of value would have happened without you. At the same time, I of course take responsibility for everything that is written here, and in no way wish to attribute any of my arguments or positions to others. You should feel free to claim what you wish! My first thanks then go to the team of the Torture Prevention Project, starting with my partner throughout the project, Anna Noonan, whose creativity, nimbleness of mind, breadth of talent, and steadfastness of spirit have been the greatest gift. I owe a particular debt to the team who conducted much of the empirical research that I have drawn on in this book. The empirical research was led by Kiran Grewal, who oversaw and undertook much of the research as well as devising much of the research strategy. The principal researchers, Aastha Dahal, Pradeep Pathak, Vidura Munasinghe, and Kaushi Ariyarathna, all worked with great professionalism and often in very difficult circumstances. A number of others also contributed to the research, including Meloney Palihakkara, Thilini Chandrasekera, Rohit Karki, Avanka Fernando, and Kushangika Nawaratne. As the research was conducted under conditions of anonymity, the participants cannot be named. Nevertheless, I wish to acknowledge your time and expertise, as certainly the research could not have been undertaken without

ix

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Acknowledgments

the generosity you showed in speaking with us and sharing your ideas and experience. Many people worked in a range of capacities required to create and sustain a project of this complexity. I would especially like to acknowledge and thank Paula Gleeson, the project manager for the final stages of the process, for her grace, professionalism, and insights. I also thank Emma Walters who helped create the original architecture of the project and without whom it would not have been funded, and who provided invaluable feedback through her evaluative work. Others who made valuable contributions at different points of the project were Nilani de Silva, Emma Walters, Ivone Rebello, Melissa McCullough, Iman Muldoon, and Bobbie Santa Maria. The experts with whom I worked on devising the design of the project and who undertook important research from their respective disciplinary perspectives have all had a tremendous influence on my thinking, which is etched throughout this book: Jack Saul, Astrid Birgden, Moira Carmody, Janet Chan, Darius Rejali, and Gameela Samarasighe. Each of you had brilliant insights and shared them with creativity and generosity. Darius and Jack both went far beyond the call of the brief, in wisdom and friendship, and I am forever grateful to them. Thank you to Michael Griffin, who created the bridge for a team of academics and human rights types into the world of the security sector, and who certainly taught me to reconsider many of my assumptions. The project would not have been possible without the collaboration of the Centre for the Study of Human Rights at the University of Colombo and the Kathmandu School of Law. I wish to especially recognize Sharya Scharenguivel and VT Thamilmaran at the University of Colombo, for your partnership during some very difficult moments. Thank you also to the members of the reference groups in Sri Lanka and Nepal, and most especially the Venerable Buddiyagama Chandarathana, who has long worked for human rights in Sri Lanka and was a tremendous support in our research. I wish to give a particular acknowledgment also to the Human Rights Protection Facilitators in Nepal and Sri Lanka, for your willingness to go to places that none of us had been, to take risks, and to make the difference you could. I also wish to acknowledge Navaraj Dhakal for your integrity and partnership. Thank you to my Advisory Board: Sanat Basnet, Kiran Bedi, Ravindra Fernando, Robert J Lifton, and Philip Zimbardo. I wish also to acknowledge the European Commission for the grant that supported the project, and in particular Leslie Pierrard and David Daly. At the University of Sydney, I had constant legal, financial, and administrative support from Helen Browne, Angela Collins, Magdha Ghali, Mark

Acknowledgments

xi

Molloy, Leanne Price, and Georgina Wheadon. I also wish to offer my special thanks to Duncan Ivison and Stephen Garton for your unquestioning support, even when it was very tough. There are also a number of my colleagues who have traveled with me along the intellectual journey, as thought partners and as true friends: Barbara Caine, Christopher De Bono, Andrea Durbach, Moira Gatens, Dinah Pokempner, and Glenda Sluga. Thank you also to my wonderful colleagues on the human rights team, Susan Banki, Elisabeth Valiente-Riedl, and Dinesh Wadiwel. Nick Cheesman and Rachel Wahl have both been invaluable interlocutors in finding my own position in treacherous ethical territory. I would also like to acknowledge Laura Davy, whose brilliant work inspired the idea of including vignettes as a way into some of the denser theoretical material. I am deeply grateful to Adeela Suleman, the extraordinary artist who generously allowed me to use one of her artworks for the cover of this book. Thank you also to Harry Hutchison of Aicon Gallery for facilitating the process. Thank you to John Berger, Danielle Menz, Sarah Payne, and the rest of the team at Cambridge University Press for your professionalism and support in producing this book. Thank you to Guy Scotton for your meticulous copy editing. Once one leaves the official intellectual community, one comes of course to the deepest circle of inspiration and support – family. My mother, the Krysha of the dedication, died during the course of the project, but her strength remains my exemplar. Hugo and Sacha, thank you for your warmth, love, and authenticity. Arielle, who I know will carry the work of justice into the future, in her own way. Luna, who sits constant, close, and present through it all. And Leonard, in thought and presence and in every way.

Abbreviations

ACHR ANT APF APT CPT HIG ICRC ICTY IDF JVP OPCAT NGO NPM OSCE OIC RUC SOCO ToC UN UNCAT

Asian Centre for Human Rights Actor–network theory Armed Police Force (Nepal) Association for the Prevention of Torture European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment High-Value Detainee Interrogation Group International Commission of the Red Cross International Criminal Tribunal for the former Yugoslavia Israel Defense Forces Janatha Vimukthi Peramuna Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Nongovernmental organization National preventative mechanism Organization for Security and Co-operation in Europe Officer in charge Royal Ulster Constabulary Scene of crime officer Theory of Change United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

xii

Introduction

The prohibition of torture is sacrosanct; or at least it is for people who aspire to a global political order that honors the principle of universal dignity. Freedom from torture is one of the few non-derogable human rights, meaning that it is absolute and binding, irrespective of the circumstances or stakes. For others, though, such “high-minded” ideals need to be measured against what they hold to be “good,” and increasingly against the security of “our people”; a calculation that frequently places torture in the column of “necessary” costs. Poised between an ethic of absolute ends and the aspiration of universal rights on the one hand, and the spell of global securitization and resurgent ethno-nationalism on the other, torture has become a type of litmus test of people’s political and ideological leanings. Neither the use of, nor the fight against torture is new; but with its official adoption as US policy as part of its War Against Terror, from the beginning of the twenty-first century, the ethics of torture came to occupy a particularly contentious and evocative place in global political consciousness. As the selfproclaimed global champion of liberal democratic values and individual rights, and by virtue of its massive media amplification, when the authorization for torture of its declared enemies came down from the highest levels of the US administration, torture became a global spectacle. That this flagrant form of state abuse has moved from the shadows of closed environments out into the light of political, legal, and ethical debate is, in one sense, very good. Now more people are thinking and talking about it; or at least so it seems. For while we might have the impression that at last light has been shone on the previously concealed practices of torture, the torture that tends to be the subject of exposure and analysis is by and large spectacular torture, and this is but the apex of the torture that is in fact occurring in the world. The far broader base of the triangle remains in the dark.

1

2

Introduction

Thus, while in one sense, the increased public awareness of torture represents an improvement, the fact that it is a particular class of torture that captures public attention generates another set of problems. Specifically, the prominence of the type of spectacular torture associated with Guantanamo, Abu Ghraib, and the black sites (where the United States rendered prisoners) distorts the public imagination, filling it with images of hooded and hung men, and preserving the obscurity of the far more banal, but also far more prevalent torture that has been happening for decades and that continues to happen.1 In prisons, lockups, and other places of detention across the globe, torture in the form of daily abuse of detainees by state authorities has long been routine practice. “A few slaps” to the face of someone accused of a petty crime, the reliable abuse by police of the poor and socially marginalized, the punitive violence against “hardened criminals”, all of these recede into less dramatic categories like “police violence” or “security sector abuse,” reserving torture for the surreal and spectacular. According to the definition set out in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), to qualify as torture an act must meet three types of criteria. It must involve severe pain and suffering; it must be inflicted by, or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity; and it must be inflicted for one of a number of reasons (including extracting information, intimidating, and discriminating). This implies that irrespective of the association in the popular imagination between torture and electric shocks or waterboarding, the routine violence that security sector and law enforcement officials inflict against people in their custody unambiguously falls within its ambit.2 Beyond this formal case for classifying these acts as torture is the more compelling argument that by 1

2

In his opening address to the international conference held as part of the project described in this book, Professor Manfred Nowak challenged the widely held belief that torture is only practiced against political prisoners or other so-called “high-value detainees” by pointing out that most of those he had interviewed during his tenure as Special Rapporteur on Torture had been ordinary citizens who often belonged to the poorest and most marginalized sectors of society. See Danielle Celermajer, Conference Report: Human Rights and the Security Sector in the Asia Pacific (Sydney: University of Sydney, 2015), 7. Richard Carver and Lisa Handley make a similar observation in Does Torture Prevention Work? (Liverpool: Liverpool University Press, 2016), 36. Throughout this book, rather than referring to law enforcement and security sector personnel, or perhaps the police, military, and other security personnel (like border guards, prison wardens, and so on), I will refer simply to security sector personnel, or the security sectors. This should not be taken as glossing over the important differences between these institutions, for example between police and military torture. Where appropriate, I will point such differences out.

Introduction

3

calling them torture, we attribute to them the appropriate moral gravity and political importance. When state agents routinely inflict violence against people over whom they have unilateral and legally sanctioned control, the harms are deep and wide: to the individuals who are tortured, to their families, friends, and communities, to the bonds of trust between communities and state institutions, to the legitimacy of state institutions, to the rule of law, and to the institutions that become saturated with a culture of violence. Naming these more routine phenomena of state violence against detainees “torture” provokes significant resistance, most obviously among those who might stand accused, and wish to distance their acts from the grimmer crimes that they allow that merit this grave label. But it is not only security forces and their political allies who resist this nomination. Other scholars have pulled me up and asked why I insist on calling these acts torture, rather than police brutality or abuse in detention, as if doing so represents some type of infraction or boundary crossing into a territory reserved for rare and grotesque horrors.3 As Stephanie Athey points out, it is not against the UNCAT definition that these acts fail to qualify as torture, but against the imagination of a public that now associates torture only with a particular category of brutality.4 Indeed, already when he was documenting the use of torture in post-transition Chile in 1995, the then Special Rapporteur on Torture, Sir Nigel Rodley, noted that “those affected avoid the use of the word torture,” seemingly because “they associate torture with the infliction of electric shocks and that has rarely happened in the past two years or so.”5 One response to these disagreements is that they are ultimately irrelevant. The full range of security sector abuses need to be sanctioned and prevented, so why quibble over labels or distinctions? If, however, one is serious about prevention, one needs both the motivation that outrage can inspire, and a robust understanding of the nature of the problem one is trying to prevent. And it seems that both the dramatic forms of torture associated with political conflicts and inflicted on so-called high-level detainees, and the mundane forms of torture that saturate security organizations throughout the world, have 3

4

5

As I will discuss in Chapter 1, the definitions of torture have also been contested for being overly narrow, in particular for excluding the so-called private violence that disproportionally affects women. Stephanie Athey, “The Torture Device,” in Torture; Power, Democracy and the Human Body, edited by Shampa Biswas and Zahi Zalloua (Seattle: University of Washington Press, 2011), 130–31. Economic and Social Council, Report of the Special Rapporteur, Mr. Nigel S Rodley, Submitted Pursuant to Commission on Human Rights Resolution 1995/37. Addendum: Visit by the Special Rapporteur to Chile (Geneva: United Nations, 1996), para. 73.

4

Introduction

shown tremendous resistance to the preventative efforts of the many individuals and organizations that have dedicated themselves over the past forty years to eradicating torture. This is not to say that torture prevention strategies have not made a difference, and part of what I do in this book is to set out in some detail what we know about the type of impact that different prevention strategies have had. That torture remains as widespread as it is, however, and that in many contexts it remains systematic and trenchant, must give us pause. There are different ways one might interpret torture’s persistence in the face of preventative efforts, each with different implications. The problem may be that the strength of the forces and interests that keep torture in place remains so much greater than the strength of those that are seeking to oppose it. By implication, to overcome those forces, the quantum of effort, energy, and resources dedicated to building an opposing power need to be augmented. According to this view, those who support human rights need to redouble our efforts to expand and elevate the effectiveness of human rights laws, programs, and institutions, but there is no need to question or alter the rationales or logics that underpin them or the methods they adopt. In simple terms, more of the same. A supplementary interpretation would be that geopolitical circumstances have considerably altered in the twenty-first century, and that whereas the use of torture had been waning, this trend has been reversed, with torture attracting increasing popular and governmental support. Of course, this shift would only explain what I have called spectacular torture, whereas when it comes to mundane torture, one would expect geopolitical changes to have less effect. Alternatively, one might take torture’s persistence as a sign that the prevention strategies that have been developed within the framework of human rights have been in some ways misdirected, inadequate, or flawed. If one accepts this interpretation, the problem is not only a quantitative one, but at least partially qualitative. The implication is that we need new thinking about what makes for effective prevention, and for this new thinking to inform the development of a new repertoire of prevention strategies to supplement or modify those we have in place now. Insofar as human rights scholars and advocates are (like any group with strong commitments and well-established professional styles) attached to how we have been pursuing our aims, this is a more difficult and more dangerous line to pursue. It is, however, incumbent upon us periodically to stop, scrupulously examine our assumptions, look at the evidence, reflect on the available frames of reference and conceptual approaches, and critically reflect on how we have been going about pursuing our objectives. In fact, of late there has been no lack of fairly harsh criticism of human rights for the particular way in which this framework approaches wrongdoing

Introduction

5

and politically sanctioned abuses; and the criticism I am referring to is not from the conservative or right side of politics, but from the progressive left. Specifically, a growing body of very popular literature accuses human rights approaches of (inter alia) failing to address (if not enabling) the structural bases of violations.6 Critical theories of international criminal law, for example, point to the way in which prosecuting and punishing individual perpetrators constructs large-scale wrongs such as genocide or crimes against humanity as the outcome of the decisions or choices of agents, thereby obscuring the larger collective and structural dynamics that in fact underpin those violations.7 When specified, such larger dynamics tend to be macro factors or macrostructures, such as the legacies of colonialism and persistent manifestations of neo-imperialism, neoliberal economic restructuring, or even the social and political disruptions arising from ecological instabilities such as drought, triggered by anthropologically induced climate change. Although in some cases, I fear that polemic has overtaken careful scholarship in this work, the thrust of the criticisms has merit; it draws our attention towards critical factors that have received insufficient attention in the dominant human rights approaches. In particular, the focus that many human rights approaches have had on punishing perpetrators, and the domination of legal strategies for bringing about institutional and behavioral change betray an insufficiently capacious understanding of the causal forces that underpin violations, or the dynamics that sustain institutional systems and cultures. The problem, though, is that pointing out that the “real” causes of human rights are macrostructures like neoliberalism, global capitalism, or neoimperialism provides those who wish to do the work of actively preventing abuses with little guidance, beyond aligning themselves with political or social 6

7

Some of the most cited texts in the school I am pointing to here include Samuel Moyn, The Last Utopia (Cambridge, MA: Belknap Press, 2010); Wendy Brown, “‘The Most We Can Hope For . . .’: Human Rights and the Politics of Fatalism,” The South Atlantic Quarterly 103, no. 2 (2004); Stephen Hopgood, The Endtimes of Human Rights (Ithaca, NY: Cornell University Press, 2013); Susan Marks, “Human Rights and Root Causes,” The Modern Law Review 74, no. 1 (2011). A good summary can be found in Fre´de´ric Me´gret, “Where Does the Critique of International Human Rights Stand? An Exploration in 18 Vignettes,” in New Approaches to International Law, edited by Jose´ Marı´a Beneyto and David Kennedy (The Hague: Asser Press, 2012). For a classic critique predating this more recent literature see David Kennedy, “International Human Rights Movement: Part of the Problem?,” Harvard Human Rights Journal 15 (2002). On the problematic human rights framing of genocide see Mahmood Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda (Princeton, NJ: Princeton University Press, 2014). For a collection on international criminal law in particular see Christine Schwobel, ed., Critical Approaches to International Criminal Law (Abingdon and New York: Routledge, 2014).

6

Introduction

movements that advocate radical macroeconomic and political transformation. If the objective of the critical exercise is to garner insights and generate principles that will help inform more effective prevention strategies, as it currently stands, this type of critical reflection will be of little use.8 I am of course touching here on age-old tensions between reform and revolution, short- and long-term strategies and programs, and the division of labor between high theory and more practical implementation and strategy; but the problem of how to negotiate these tensions in a manner that appreciates the wisdom of deep analysis while remaining responsive to the realities of injustice and suffering today remains pressing, no matter how familiar it is. Alive to the import of these criticisms, but exercised by the practical imperative, I have for some time wondered what a human rights approach that took structural or systemic causes seriously would look like. Or more accurately, I have wondered how we could reimagine human rights as an approach that is able to articulate and operationalize responses to the complex interplay of structural, systemic, and individual causes and conditions. To some within the critical camp, to pursue this type of speculation is to misunderstand the nature of the problem, rooted as it is, as Marx pointed out in the original articulation of this critical position, in the logic of rights themselves.9 According to this argument, rights-based approaches do not simply misdiagnose the problem; they serve the ideological function of keeping it hidden.10 Again, this type of critical stance serves a useful role in taking some of the gloss off a naive endorsement of rights-based approaches, or at 8

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One problem here is the failure to distinguish between critique and criticism. Critique, at least in the critical theory tradition, but in fact going back to Kant, is concerned with illuminating the conditions of possibility for a certain practice, and not showing what is wrong with it. The confusion we see in some of the readings, and indeed some versions, of critical human rights theory is that the conditions of possibility for practices are mistaken for the problem that needs to be changed, thereby confusing analysis for a political program. Karl Marx, “On the Jewish Question,” in The Marx–Engels Reader, edited by Robert C. Tucker (New York: Norton, 1972 [1844]). I should note that Marx is not the sole inspiration for the critical literature, much of which also draws on Foucault, and his understanding of how regimes of law and rights-bearing subjects are themselves discursively constituted. See, for example, Ben Golder, Foucault and the Politics of Rights (Stanford, CA: Stanford University Press, 2015). This position is most clearly articulated by Wendy Brown and Naomi Klein, for whom rights talk is clearly complicit with the larger project of neoliberalism. Brown, “‘The Most We Can Hope For . . .’”; Naomi Klein, The Shock Doctrine: The Rise of Disaster Capitalism. (London: Penguin, 2007). Although his work gestures in this direction, Sam Moyn has been more cautious and prefers to see the relationship as one of coincidence rather than causality. See Samuel Moyn, “The Future of Human Rights,” Sur: International Journal of Human Rights 11, no. 20 (2014).

Introduction

7

least provoking reflection.11 As people who teach human rights or who have worked in the field know, while there are many people who dismiss our politics and ethical commitments as naive or wrongheaded, there are also many who see a halo above our heads the moment we say what we do. Provoking critical reflection is, nevertheless, importantly different to denunciation, and, at least when framed in essentialist terms, much of this critical work not only lacks practical import, but even within its own conceptual framework is overly definitive and fatalist. One can accept as legitimate the objection that rights-based approaches have obscured structural dimensions of the causal story of violations, without foreclosing those dimensions of human rights practice that do (albeit incompletely) address structure or system, and without barring the possibility of expanding the way in which we might imagine or “do” human rights. It is this work of building on the structural or systemic dimensions of human rights practice, and reimagining how we might expand human rights theory and practice so that they are more hospitable to a structural or systemic analysis, that this book seeks to do. Insofar as contemporary renderings of the human rights idea trace their roots to the emergence of ethical individualism, or in simpler terms, insofar as the absolute worth of the individual human agent is held to lie at the heart of the human rights idea, human rights approaches will be thrown towards focusing on the contribution that agents make to causing violations. And yet (and this is the basis of my reservation), this throwness to focus on agents as the primary causes of violations is neither a necessary feature of human rights approaches, nor reflective of the range of actual human rights-based practices. Indeed, as I take it, part of what is entailed in the genealogical histories of human rights (which ought to be distinguished from straight neo-Marxist critiques) is a certain indeterminacy with respect to the possibilities of a concept or practice, and a rejection of the view that there exists an ahistorical, essential set of qualities necessarily entailed in any expression of it.12 If, in other words, human rights have taken a particular path, and the human rights idea has become congealed around particular orientations, this state of affairs is contingent not necessary; other possibilities have been folded into the human rights idea and human rights practice, and they remain available. 11

12

I leave to the side for the purposes of this analysis the dangers that such critiques from the left might pose at a time when human rights approaches are under such threat from the other side of the political spectrum. In this regard, and to paraphrase Wendy Brown, “the most we can hope for” might be something to hang onto in times of extreme threat. On the indeterminacy inherent in the genealogical method, see Ben Golder, “On the Genealogy of Human Rights: An Essay on Nostalgia Nostaligia,” Australian Journal of Human Rights 22, no. 1 (2016).

8

Introduction

Nevertheless, the practical question of how our strategies for preventing torture could be made more effective, and the more abstract debate about the structural bases of violations, do meet at a common point. And this is the point where both are concerned with understanding what causes torture. For, just as the structural criticisms level the accusation that human rights approaches misdiagnose the true causes of violations, so too, devising effective prevention strategies depends on accurate diagnosis. If we are going to stop something happening, we need to understand the factors that are causing it, creating the conditions for it to occur, and sustaining it. Certainly, and as I will discuss momentarily, diagnosis is not sufficient. Once we have correctly answered the diagnostic questions, we also need to know what types of actions are effective in bringing about changes to those causes, conditions, or sustaining factors. We need to have available to us the practical tools for taking those actions, and we need appropriate access to the sites of change, the resources required, and so on. Accurate diagnosis is, however, the first step. So, what is it that causes, conditions, and sustains torture? The centrality of this question to the preventative exercise takes me back to my earlier distinction between spectacular, or high-level political torture, and mundane torture. In the case of the former type, the most obvious, although by no means complete answer is that torture is perpetrated on the basis of orders issued from the highest levels of political power. In the case of US torture as part of its War Against Terror, for example, establishing an accurate etiology of torture has involved uncovering the official sanctioning and authorization of torture through the socalled “torture memos,” and tracing their point of origin right up to the Secretary of Defense, the Attorney General, and the President.13 Unsurprisingly, when revelations of torture were amplified through the global media, President Bush and Secretary of Defense Rumsfeld were quick to lay blame at the feet of the “few bad apples,” the low-level guards or interrogators who were depicted as having gone rogue and departed from US policy, presumably due to some personal pathology or in the thrall of small-scale collective excess. Approached through another lens, a completely different but by no means incompatible explanation is that what lay behind the United State’s use of torture against this particular enemy was the political program of a beleaguered imperial power determined to ensure its absolute domination over its “less civilized” adversaries at any cost.14 In between these two types of causal stories, one might 13

14

See Karen J Greenberg and Joshua Dratel, The Torture Papers: The Road to Abu Ghraib (Cambridge: Cambridge University Press, 2005). This is a highly oversimplified summary of the thesis developed in a far more nuanced and sophisticated manner by Marnia Lazreg in Torture and the Twilight of Empire: From Algiers to Baghdad (Princeton, NJ: Princeton University Press, 2016).

Introduction

9

locate a range of other contributing factors, including the roles that psychologists played in developing the program of torture that was adopted, the excision of the sites of torture from the jurisdiction of US courts (combined with the manipulation of law itself), and the social and political environment of heightened fear and nationalist hatred that provided a permissive environment for the other factors to flourish. Borrowing from an increasing understanding of the interconnectedness of the “natural” world, we might think of these factors, along with many others, as the ecology within which torture is produced. Thus, rather than focusing on the putative bad apples, our attention needs to be on the poisoned orchards, and beyond them, the social, political, cultural, and material practices, structures, and systems that produce the poison and through which it circulates. In parsing these different explanatory or causal factors – these different dimensions of the ecology that produce torture – we ought to notice that as well as operating at quite different levels, or in different spheres, they also afford quite different openings for intervention. That is, and this observation will be crucial to the work I am doing in this book, one might insist that the macro-political explanation provides critical insights, while at the same time recognizing that it is at the level of the more tangible practices and institutional conditions that prevention interventions need to take place. When we turn to mundane or routinized torture, the picture becomes a great deal muddier. Although political-level actors almost certainly tolerate torture occurring within the state institutions that they are supposed to oversee or regulate, in most cases, there is no chain of command leading back from instances of torture to the orders or authorizations of high-level political leaders. Similarly, although the criminal justice system and the legal institutions that are charged with overseeing the proper administration of law may be rife with maladministration, corruption, and institutional biases, and the laws against torture may be weak and poorly enforced, one may be hard pressed to identify specific laws that authorize the use of torture. Moreover, although personnel within a state security institution may routinely use torture, it is unlikely that the use of torture will be official policy. Thus, even though it is no doubt true that every act of torture can be described as a crime that has a perpetrator or perpetrators, and indeed, we can rightfully, and must, hold those perpetrators criminally liable, it becomes much more difficult to pin causality either on the political authors at the top, or on the pathological agents at the bottom. Or perhaps more accurately, even as we hold them criminally responsible, we also need to understand the constitution of their ethical orientations, their judgments, and their actions, within the broader ecology in which they are acting.

10

Introduction

That torture, especially mundane torture, is embedded in what I am for now calling a broader ecology of situational or structural factors is, in one sense, what we mean when we say that torture is systematic. Or at least, it is what we mean if, when we say that a practice is systematic, we have in mind the idea that it is rooted in systems, or situational factors, as distinct from individual intentions, and not simply that it occurs regularly. Perhaps in this case, the word “systemic” is clearer. Evidently, understanding and articulating the causal dynamics that underpin torture is a fraught task. And the difficulties lie not only in methodological impediments involved in researching what is largely a concealed practice. There are significant conceptual complexities involved in constructing a causal story that maps the nonlinear interaction between situations, structures, and agents. And this conceptual complexity is exacerbated by our affectively laden intuitions about morality, agency, and responsibility in relation to torture. Thus, it is not simply a matter of insisting that we bring a more complex lens to the task of mapping the causes and conditions of torture. To the extent that our habitual ways of thinking about these issues are rooted in our affective and moral response to the phenomenon of torture and our strongly held commitments to holding individuals responsible and culpable for their actions, we will have to do the work of creating a clearing where such ethical and affectively charged reactions will not automatically be triggered; or at least not be triggered in such a way as to impede our critically thinking about causality and prevention approaches. Think about the insights that critical criminological analysis has brought to the problems with “tough on crime” approaches to juvenile justice. Tough law-and-order approaches may satisfy retributive impulses, but once we recognize what underpins young people’s offending, we can also appreciate how these approaches fail. Nevertheless, we regularly see political figures or parties running on “tough on crime” platforms, and attracting significant support for this very reason. People’s affective attachments to blame and punishment tend to be sticky. Questions about the causes of social phenomena lie at the heart of what the social sciences are about. And not only questions about particular causes of particular phenomena, but meta-questions about how we ought to think about causality, and specifically about whether causal explanations ought to take individual human agents as their fundamental unit of analysis, or whether social phenomena need to be understood in terms of the operation of structures that themselves shape what agents believe and what they do. Indeed, one of the distinguishing features of social science theory since roughly the middle of the twentieth century has been the elaboration of a range of theories that seek to reconcile the experience of ourselves as agents, or as subjects who freely

Introduction

11

choose our actions, with the evidence that larger social dynamics or structures shape social, political, and economic life and indeed subjectivity and agency themselves.15 When it comes to operationalizing this theoretical insight, however, matters look quite different. This may be in part because of the difficulty of articulating approaches that transcend the agency/structure dichotomy in anything other than obscurantist language. But even if we manage to articulate what it would mean theoretically to explain phenomena (historical, social, economic, political) in a manner that recognized the contribution of, and relationship between agents and structures, we have been far less successful at setting out what action in the world that is informed by this theoretical approach would look like. As Bruno Latour, one of the theorists most associated with decentering agency, himself observed, recognizing that “everything is connected” would seem to imply that we need to “take everything into account,” an implication that may well leave us paralyzed.16 Indeed, although there are policy analogues to structuralist explanations of large-scale social phenomena (education for women, for example, as an intervention that addresses a range of manifest gender inequalities, including those related to reproductive health), when it comes to structural explanations of more acute social problems, there is a tendency to revert to interventions that seek to alter agents. Interventions or approaches that simultaneously address structural-level and agency-level factors and that do so in a practically and conceptually integrated manner are even rarer. This then opens the question of how well the preventative approaches that have been adopted correspond to this systemic understanding of the etiology of torture. The answer to this question is a complex one that I will be asking

15

16

As much of this book is dedicated to elaborating such theory, I do not do so here, but the sweep of this shift is evident from intra-Marxist debates about how to resolve the obvious problems with objectivist (structuralist) accounts that omitted any subjective dimension (Marcuse), through philosophical attempts to reconcile the insights into the complexities of Freudian intersubjectivity with compelling evidence of the force of economic structuralism (Castoriadis), through debates in anthropology and political sociology about how to characterize and explain political culture (Ortner). See Herbert Marcuse, The New Left and the 1960s: Collected Papers of Herbert Marcuse, vol. 3, edited by Douglas Kellner (London: Routledge, 2005); Cornelius Castoriadis, “The Imaginary: Creation in the Social-Historical Domain,” in World in Fragments: Writings on Politics, Society, Psychoanalysis, and the Imagination, edited and translated by David Ames Curtis (Stanford, CA: Stanford University Press, 1997); Sherry B Ortner, “Theory in Anthropology since the Sixties,” Comparative Studies in Society and History 26, no. 1 (1984). Bruno Latour, Politics of Nature: How to Bring the Sciences into Democracy (Cambridge, MA: Harvard University Press, 2004), 198.

12

Introduction

throughout this book, so for now, I will simply provide the rough coordinates of an answer. If we start with what has arguably been the principal approach to torture prevention, the establishment of laws that criminalize torture and the subsequent attempt to punish perpetrators, it would seem that the focus has very much been on the individual agents who perpetrate the crime. The causal story that underpins this prevention approach is one that locates the principal, or at least target cause as the person who committed the wrongful action (actus reus) with the wrongful intention (mens rea). To the extent that it plays a preventative role, punishment does so pursuant to theories of general deterrence: by altering the costs and benefits according to which they calculate the rationality of their acts, punishing is believed to influence the decisions of others who may in the future contemplate committing similar acts. At the same time, insofar as criminalization and punishment play a more constitutive or expressive role, they do their preventative work by altering the moral landscape within which people assess their options and choose their actions. It is important to notice here that the legitimate role that punishment plays in holding perpetrators responsible ought to be analytically, and I argue practically, distinguished from the question of whether punishment is effective as a preventative strategy. To this end, being responsible for an act, and being the cause or the condition of an act need to be distinguished, both analytically and strategically. Beyond criminalization and punishment, a number of the preventative strategies developed and implemented since the mid-1980s focus not on individual perpetrators but on systemic or institutional conditions. Trying to ensure that people are not detained incommunicado, for example, or that evidence obtained under torture is ruled inadmissible in courts, are strategies that do their work by trying to address some of the situational preconditions for torture. Indeed, in their recent multi-country study on torture prevention, Carver and Handley found that the measures that are most effective are those that seek to alter the situation of detention (particularly in the hours and days immediately after someone is taken into custody).17 In this same evaluation though, the authors also note the limited reach of the principal mechanisms that have been adopted to bring about these situational changes – namely legal regulation and monitoring. This critically important finding brings us back to the point I made earlier: correctly diagnosing the cause of the problem, or identifying the causes or conditions that need to be targeted, is only the first

17

Carver and Handley, Does Torture Prevention Work?

Introduction

13

step of a process that also requires identifying and being able to operationalize effective actions for bringing about the desired changes. I will return to this momentarily. A third major strand of prevention work has involved human rights training and education for security sector personnel. This approach focuses fairly squarely on individual agents, seeking to directly alter their knowledge, values, or skills so as to strengthen their commitment to human rights and their ability to carry out their professional functions in a manner that is human-rights compliant. Indeed, one of the real weaknesses of human rights training as a preventative approach is that it generally abstracts individuals from their contexts, as if their judgments and actions are purely the outcome of their individual values and preferences, and these in turn exist in some realm that can be abstracted from the material, cultural, and institutional contexts in which they are embedded. The range of approaches to torture prevention would seem, then, to attend to both agent- and system-level causes. Nevertheless, if one looks at where the greatest emphasis has been placed, and particularly at the tremendous efforts that have been put into criminalization and punishment, one sees that the more systemic approaches have not received the attention or development that they merit. This relative imbalance becomes particularly stark if one pays attention to what we know about the situational factors that underpin institutional violence and abuse, including torture. We have at hand an important body of research that tells us that situational and not dispositional factors are most determinant in explaining systematic institutional violence, and yet, our prevention strategies have not dug sufficiently deeply into, nor sufficiently built onto this insight. Perhaps this relative imbalance is perpetuated by our intense moral and affective responses to a violation as horrifying as torture. Our grave misgivings about any approach that would even seem to imply a laxity toward the responsibility of perpetrators, and thereby convey the message that torture is less than an absolute moral wrong, may have impeded these approaches being given the priority of place that they merit. As Hannah Arendt insisted in her analysis of the Eichmann trial, even if (as she herself argued) it was the particular historical context of Nazi totalitarianism that conditioned Eichmann’s inability to think, and this inability in turn undergirded his committing genocidal acts, and indeed, even if tens of thousands of others would have committed exactly the same acts under the same conditions, he still deserved to be punished.18 At the same time, and as she made clear in the conclusion to that analysis, to her mind, punishing Eichmann had nothing to 18

Hannah Arendt, Eichmann in Jerusalem (Dordrecht: Penguin, 1963).

14

Introduction

do with prevention. Again, questions of criminal responsibility and punishment need to be held distinct from questions of effective prevention, and given the affective charge around the former, our tendency to collapse them has the effect of obfuscating the latter. Irrespective of the reasons, I wish to suggest in this book that we have invested insufficient attention and energy into thinking through and conducting practical experiments into what a rich ecological or situational approach to the prevention of torture could look like. By this, I have in mind an approach that targeted the full range of systemic or situational factors and that did so in ways tailored to effectively bringing about the different types of institutional and cultural changes required. At the same time, and in contradistinction to the significant theoretical work that has been done around punishment and impunity, these approaches have been under-theorized, thus depriving practitioners and advocates of a compelling story or framework to narrate and explain why these approaches are so important, and what they have to offer. Again, this theoretical gap may reflect the difficulty in articulating a conceptual framework to underpin these types of approaches in a manner that squares with our moral intuitions and affective responses. Part of the work I seek to do in this book, then, is to clear some of the debris that may be impeding our developing such a compelling conceptual framework, and then begin to do so. As I have remarked, however, effective prevention is not only a matter of correctly identifying the causes or conditions that sustain torture, or being able to tell a comprehensive causal story. The causal story assists in identifying the objectives we need to achieve (say, ensuring that detainees are not held incommunicado), but does not furnish the most effective means of achieving those objectives. In the case of a prevention strategy, things get a little confusing, because ultimately, the objective we wish to achieve is stopping torture, and so these other interim objectives could also be cast as means to this end or objective. Why stop incommunicado detention? Because this will contribute to the prevention of torture. But still we need to ask, how do you best stop incommunicado detention? It is this distinctive question of how one achieves that (interim) objective that concerns me here. To come in a little closer, the failure to distinguish the independence of this second question generates two types of problems. The first is that we assume that once we have correctly identified an objective (a cause or condition to be changed) we have solved the problem of how to prevent torture.

Introduction

15

We might call this the problem of dominating objectives.19 The other, connected problem is that we fail to appreciate that working out how to achieve the objective is a separate enterprise, requiring its own set of expertise. We might call this the problem of the unspecified strategy. In the field of human rights, traditionally dominated by legal professionals and shaped by legal imaginations, this oversight has been most evident in the near-automatic tendency to look to legal regulation as the means for bringing about structural and institutional change.20 As criminologists have taught us, however, formal laws are an insufficient mechanism for bringing about changes in the organizational structures and practices of security sector organizations like the military and police, let alone in broader political cultures. Various tools have been developed within the torture prevention toolkit to try to bring about institutional change, such as expert committees working with state authorities to identify and help them address structural factors, sometimes combined with political pressure being placed on those authorities to do so. But if one juxtaposes these approaches with the body of work that has now been developed on bringing about organizational and normative change in other spheres like public health, it is evident that there is ample room for further thought and practical experimentation. At the same time, given the difficulties posed when one tries to address the pathologies of political, organizational, and legal systems and cultures, it is understandable that so much emphasis has been placed on criminalizing torture and trying to punish perpetrators. This legalistic approach has the advantage of being accessible (even if punishment often remains a remote possibility), and it does retain a systemic dimension, insofar as criminalization and punishment also contribute to ending impunity and discursively denouncing torture as an acceptable practice. Nevertheless, much is left out. Indeed, insufficient attention to the distinction between identifying the objective and the process of achieving it has real consequences when it comes to our practical ability to prevent torture. Thus, for example, launching the results of Carver and Hanley’s study on torture prevention, the Association for the Prevention of Torture (APT) led with the headline “Yes, Torture Prevention Works.” Indeed, the penultimate sentence of the study’s 19

20

The failure also has ramifications at the other end of the process when we come to evaluate a project or approach. In this instance, what get collapsed are outputs (for example the passage of a law) and outcomes (reductions in the incidence of the violation), with the former often taken to be a proxy for the latter. Saladin Meckled-Garcı´a and Bas¸ak Cali, eds. The Legalization of Human Rights: Multidisciplinary Perspectives on Human Rights and Human Rights Law (London and New York: Routledge, 2006).

16

Introduction

substantive introductory chapter summarizing findings across the sixteen case studies includes this very phrase “torture prevention does work,” followed by the more detailed statement “Both the case studies and the quantitative analysis tell us that the risks of torture fall substantially when preventative mechanisms are in place, especially when proper detention safeguards are practiced.”21 The finding that particular types of measures indeed lead to reductions in torture is critical and tells us where we need to aim. But in itself, it still does not tell us how to get there.22 The analytic device of the “Theory of Change,” or ToC, can be helpful both in mapping this out conceptually and as a tool for developing prevention strategies. As is the case with any intervention that seeks to bring about change in the social, political, or for that matter physical world, every torture prevention strategy has a ToC, although most often it is implicit, and perhaps not acknowledged even by the people who are adopting it. All ToCs comprise two components – a theory about what causes or conditions or creates risks for the problem or the violation one wishes to change or prevent, and a theory about how what one is doing will shift those causal or conditioning factors and dynamics. If one or other of these components is incorrect, the intervention will be ineffective. To step away from our topic area to illustrate my point, consider a project aiming to prevent dangerous drug use among young people. We come across a prevention project where the principal intervention is to provide additional tutoring to students at risk as a way of improving their ability to cope with, and thus enhance their engagement with, school. If it turns out that school engagement is unrelated to drug use, then this intervention, built as it was on an incorrect theory concerning what causes or creates risks for drug use, will be ineffective. Respectively, if the evidence indicates that in fact improving school engagement does contribute to a reduction of drug use, but studies have shown that providing tutors for this particular group of kids has no effect on school engagement, the intervention will also be ineffective. Whereas in the first instance, it was the theory about the variable that was causally related 21 22

Carver and Handley, Does Torture Prevention Work?, 101. Carver and Handley are certainly alive to this distinction insofar as they separate out what they call the legal and practice dimension of each of the measures they examine. Thus, for example, they distinguish between laws criminalizing torture and the actual prosecution of perpetrators and note the gap between law and practice. In discussing a number of measures, they also note various structural and situational impediments to their achievement. For example, in their discussion of prompt presentation before a judge, they note that even where a detainee is brought before a judge, judicial oversight may fail to protect them from torture, noting that “insufficient judicial independence may be structural” or “inherent to a situation” (p. 76).

Introduction

17

to the problem that was incorrect, in the second, the error lies with the theory about how to shift that variable. A retrospective analysis of a program that is attentive to the ToC can illuminate exactly where the intervention failed. A more efficient approach, however, would be to prospectively make the theory explicit and assess the cogency of all of its components. Applying this rationale to our case, coming up with prevention strategies that will increase effectiveness rests on the availability of rigorous research on and analysis of what causes, conditions, or creates risks of torture and what keeps it in place, as well as on effective strategies for altering these causal dynamics or the associated variables.23 Several years ago, I came to the problem of preventing torture with this constellation of thoughts and critiques in mind. Previous thinking that I had done about the structural dynamics that underpin human rights violations, and more specifically on the situational causes of institutional violence, and a certain frustration with the disconnect between the insights of social scientific research and the field of human rights theory and practice led me to the point where I wanted to both think more deeply about how we might understand the structural or systemic preconditions of torture and, importantly, how we might translate this understanding into interventions that would effectively “get at” those preconditions. To my mind, both then and now, if we are to find ways of better combining our respective expertise and insights, theorists, researchers, and practitioners need to form authentically collaborative teams and, moreover, to bring their collaborations to the context of actual practice where they seek to tackle real-world problems.24 I applied for, and was awarded a grant from the European Union to put together a team of people to interrogate these causal questions and then design an approach to preventing torture that built on the insights we gleaned from our research. The project focused on the problem of what I have here called mundane torture in Sri Lanka and Nepal, two countries with well-documented records of widespread and systematic torture by the security forces, including both the police and the military.

23

24

In Chapter 3 I take up these questions of causal relations in greater depth. For now I have referred here to causal dynamics, conditioning factors, and associated variables and not simply to “causes” because, as the example illustrates, the relationship between the variables we wish to, or can change and the variable we are trying to get at (torture) may not be best described in simple (linear) causal terms. Working on actual problems in the world, particularly ones as serious as torture, also carries a number of risks and one bears a strong ethical responsibility, if possible, to make a difference, but at the very least, to do no harm.

18

Introduction

The task that we took on was, of course, an impossible one, at least if one imagined it could be completed in three years. It entailed undertaking layers of different types of work, research, project development, building collaborative and working relationships with security sector organizations, and piloting a prevention project, simultaneously or in a coordinated manner so that they would fold into each other. Asked from the point of view of whether our project prevented torture, my honest answer would have to be that it did not. Nevertheless, the process of undertaking this project revealed a great deal about the actual dynamics that underpin and sustain torture in particular contexts, and perhaps most importantly, it made apparent some of the systemic impediments to putting in place the type of prevention strategy that would follow from a comprehensive systemic analysis. I draw extensively on the work that we did in that project in this book, in the first instance to illustrate what an “ecological diagnosis” looks like, how one might conduct it, and the types of conditioning and causal factors that show up. I also draw on the experience of working through this project to draw out the impediments to systemic intervention in real-world contexts. What I think the experience of trying to “do ecological prevention” shows is that if human rights approaches have fallen short on robustly addressing systemic or structural factors, the problem is not simply one of how human rights conceptualizes problems or solutions (although it is also that). The difficulties are also ones that arise from the realities of practice. It is one thing to observe the fact that patterns of police torture track social hierarchies such that certain classes of people (the poor, the socially marginalized, members of minority groups) are more likely to be victims of routine torture,25 or that when police torture people whom they believe are hardened criminals, they are convinced that they are doing the work of justice,26 or that torturers are produced through the socialization processes that take place within security organizations.27 It is another to operationalize those insights. In some cases, the difficulties arise because the “object” that needs to be changed is no object at all, but a highly amorphous phenomenon like “culture,” which points us towards deep-rooted patterns of belief or ethical conceptions rooted in practices of everyday life across multiple social spheres. In others cases 25

26

27

Thomas E McCarthy, ed. Attacking the Root Causes of Torture: Poverty, Inequality and Violence (Geneva: World Organisation Against Torture, 2006). Rachel Wahl, Just Violence: Torture and Human Rights in the Eyes of the Police (Palo Alto, CA: Stanford University Press, 2016). Mika Haritos-Fatouros, The Psychological Origins of Institutionalized Torture (London: Routledge, 2003).

Introduction

19

the problem is that the institutions where the problems are located are closed, powerful, and inaccessible. In all cases, there is the problem that no single intervention could address the full range of structural or systemic factors that operate across different parts of the social and political world, including political institutions, security sector organizations, the criminal justice system, and civil society. The effect is that human rights projects tend to draw on the tools that are familiar and accessible, such as legal reform and training, even as those working in the field are alive to the limitations of such tools. When I commenced the project, I had hoped that we would be able to identify some practices that would navigate this tension between accessibility and effectiveness. This required designing a prevention intervention that both identified systemic factors that contributed to the use of torture and was able to actually get at, and affect those factors. As I said, I am not sure that we were successful in doing so, and if we were, this was only to a very limited degree. Looking back at what we did, my assessment is that the balance was too far in favor of accessibility. In other words, we got at factors that were relatively peripheral, and in so doing, failed to touch or affect the factors that significantly contributed to the use of torture. Approached narrowly, acknowledging that this is the case feels like a recognition of failure, and failure in something extremely important. Taking a wider view though, it is critical to recognize that solving trenchant and difficult problems requires trials, and the trials that contribute to learning must also include errors. For the purposes of this book and hopefully for the human rights movement more broadly, the experience provides an opportunity to reflect on the difficulty of correctly striking that balance, and possibly some lessons for those who see the value in doing so. Including an extensive discussion and analysis of an experimental project as part of what might otherwise be a largely conceptual and analytic inquiry into preventing torture is an unusual and perhaps risky scholarly move. Beyond the project’s illustrative value, I chose to integrate these normally distinct levels of analysis, that is, conceptual and philosophical analysis, empirical evaluation, empirical research, and experimental practice in institutional change. I did so because part of what I want to do here is to open up some meta-questions of how the conceptual insights of social theory and the social sciences might better inform how we approach human rights prevention, and how in turn the practice of intervention speaks back to the more conceptual work, and confronts it with the assumptions it can get away with by virtue of its residing in the world of abstraction. Indeed, one of the most important insights that I gleaned from undertaking this research and examining the type of work that has been done since around the mid-1980s to try to prevent torture is that the rift

20

Introduction

between theories about human rights, and practices of human rights remains vast. If human rights practice has, as the critics contend, insufficiently attended to structural or systematic factors, there are reasons for this, and those reasons need to be understood. The contention one finds in some of the literature that people who have been dedicated to working in this field since around the mid-1980s have been co-opted into the ideology of neoliberalism offers at best a thin explanation of a far more complex and variegated set of factors that shape the types of interventions that have been developed and implemented.28 Questions about why so much of the preventative work has been dedicated to the promulgation of law and on targeting individual perpetrators, and what has impeded the fuller development of approaches that address a broad range of structural or systemic factors, are ones that merit deeper reflection. At the same time, we might ask how those approaches that do seek to alter the situational or structural factors might be enhanced. Even then, I recognize that the objection might be raised that the structural criticisms of the human rights approach would not be satisfied by attending to the types of situational or systemic factors I am suggesting require attention, even if we could effectively attend to them. Here, the objection would be that the processes, systems, or cultures of security sector organizations or societal cultures that provide a permissive environment for torture could equally be understood as symptoms of the projected underlying causes or macro factors. To this, I have three types of responses. First, and as we learned from Foucault, even macro factors like neoliberalism or global capitalism operate through micro-processes. This does not mean that they are reducible to micro-processes, but, just as “the state” in toto is nowhere to be found, it is only in the form of these myriad microprocesses that we can access them, or locate their manifestations. Second, as I alluded to earlier, one needs to recognize that different levels of causal analysis or explanation of torture are not necessarily incompatible and, more importantly, do not all play the same role. For example, recognizing how patriarchal structures or the constitution of gender relations underpin violence against women may be important in locating this particular form of violation within a larger set of relations, and it may also provide activists with a longue dure´e story of where their particular struggle sits. It would be a mistake, however, to see activism that seeks to address sexual assault by providing accessible and responsive complaints bodies, or gender training in institutions, or by supporting women’s economic independence, and so on, as obscuring the macroeconomic causes. In a similar vein, here, while structural analysts correctly locate the use of torture by state authorities as part of larger political 28

One sees a rather extreme version of this view in Hopgood, The Endtimes.

Introduction

21

dynamics, it is at the level of the more mediate or even immediate conditioning factors that preventative action can be taken. A legitimate objection framed in structural terms against these types of actions could only be sustained, I would argue, if it could be shown that acting on these apertures impedes transforming macro-political factors. All that said, if the critic still insists that the various systemic factors that I have pointed to as the causes or conditions of torture are but symptoms, then I would concede that neither a human rights approach, nor any approach short of a macro-political transformation will be sufficient to their diagnosis. Even then, however, I see the burden of explanation still being with them to identify the path that we ought to take now to begin to deconstruct what could otherwise be an ever-elusive macrostructure. The chapters that follow track this inquiry into what it means to understand torture as the outcome of structural or systemic factors, how this type of approach assists in preventing torture, and what makes it difficult, both conceptually and practically, to develop structural or fully systemic and effective prevention strategies. To commence, in Chapters 1 and 2, I look at the principal approaches that have been adopted to date to try to prevent torture, and consider what we know about their effectiveness. In this sense, these two initial chapters form the foundation or starting point for thinking about what we have been doing and what we ought to be doing to prevent torture; they are the baseline if you like. For readers who are unfamiliar with the field of torture prevention, or who wish to get a map of how the field has been operating, or to think through the analytic question about how different types of strategy encode different understandings of causality and change, these chapters will be particularly useful. Chapter 1 commences with a discussion of how torture has been understood and explores some of the difficulties involved in defining torture. Here, I am less concerned with the formal disagreements or the problems that arise from the official definition’s vagueness or underinclusivity than with disputes that arise between human rights advocates, and the people whose behavior is the target of interventions, but who disagree that what they are doing counts as torture. The chapter then describes the main approaches that have been developed and adopted to try to prevent torture since the mid-1970s. I endeavor here to abstract the (usually implicit) ToC that underpin them, so as to bring out their logic and allow us to critically analyze the implicit understandings they encode of the causes of torture, and how the actions that they prescribe are believed to bring about change. In Chapter 2, I then turn to considering what we know about the impact of these different approaches to prevention. As I explain at the beginning of this

22

Introduction

chapter, because robust evaluations are both patchy in their coverage and uneven in their conclusions, this exercise requires a certain degree of creativity. Where evaluations are available for general approaches (say the promulgation of international law and treaty ratifications) or more specific interventions, I draw on these. Where, however, they are not, I consider what we know about the impact of similar strategies in cognate areas, or think through what would need to be true for them to have their desired impact, and then assess the validity of their underlying theories. We can draw several conclusions from the evaluation literature that have important implications for how we think about developing the most effective prevention interventions. First, it seems that approaches that bring about specific types of changes to the conditions within which torture occurs, specifically to the conditions of detention, have the greatest impact on reducing torture. At the same time, though, while there is a sound understanding of what changes need to be brought about, there is a good deal less clarity about how to bring them about, and we have good reason to cast doubt on the efficacy of legal regulation in this regard. Knowing what to change, in other words, is not equivalent to knowing how to bring about those changes, and it is often at this second step of operationalizing change that our strategies fall down. Chapters 3 and 4 then consider research on the systemic or situational factors that cause or condition institutional violence and torture in particular. Chapter 3 commences with a conceptual discussion of the idea of causality itself, arguing that we need to rethink causality in a way that can encode different types or levels of causation or conditioning, such that we can tell a story not simply about the “causes” of torture, but also about the factors that create opportunities for, authorize, legitimize, and permit torture. The first part of the chapter involves a fairly abstract and analytic discussion about the way that philosophers have drawn the distinction between causes and conditions, and that some readers may wish to skip. For those who find abstract theory alienating, the first point I wish to draw from this analysis is that the distinction between those factors that cause humans to act in particular ways, and the background conditions that need to be present for their so acting, is a highly contextual one. The second is that for the purposes of thinking about preventing an aberrant action, as distinct from apportioning blame, it may be to the background facilitating conditions, rather than to the proximate causes, that we need to attend. The chapter then suggests a theoretical frame, which I call an ecological or multisystemic theory, that can help us map the different dimensions of causes and conditions across the social field within which torture occurs. The chapter then considers the body of research that underpins what is known as the situational hypothesis and how we might square this

Introduction

23

hypothesis with a recognition of individual responsibility or agency. Here, I look at research on the conditions under which institutional violence is normalized, at obedience and conformity, and at how subjects come to assume for themselves the dispositions that encode and enable systematic abuse. Chapter 4 seeks to paint some vivid and empirically grounded pictures of the worlds within which torture becomes endemic. It commences with a discussion of the divergent perspectives of the outsiders who come into such worlds with a view to stopping human rights violations, and the people who live within those worlds, and for whom practices like torture have a certain, albeit perverted, rationality. Taking this rationality seriously, rather than outright condemning it, might strike those committed to human rights as an ethical affront, but I argue in this chapter that comprehending the worlds within which torture arises, including understanding how they occur to the people who belong to the organizations that perpetrate torture, is critical to building up a rich narrative of the conditions that perpetuate its use and make its prevention so difficult. Drawing in particular on the field research that we conducted in Nepal and Sri Lanka, but also on the work of a number of other scholars who have conducted similar work, this chapter portrays the social, organizational, legal, and political ecology within which torture emerges and that sustains it. It is, as is the vignette that precedes it, in some ways an ethically challenging chapter, and one that may provoke a range of ethical responses. By this point of the book, I hope to have made the argument that the efforts of human rights organizations and advocates to prevent torture could be enhanced by their more comprehensively embracing a situational approach; or, put slightly differently, by their broadening, deepening, and strengthening the situational approaches that have been part of their repertoire to date. This argument has been based on what we know about the conditions that produce systemic violence and human rights abuses in security sector institutions, and the development of a ToC that would be responsive to this analysis. As with any recommendation to adopt a new or modified repertoire and form of action, however, the case for its uptake rests not only on the cogency of what is being recommended as a strategy for change in general. It also rests on the feasibility of implementing the new strategies, and their suitability for the object of change, in this case, security sector organizations. And, beyond this, the prospect of such strategies being taken up depends in part on their consonance with the field that would adopt them. To give an example, it may be that university students would greatly benefit from radically altered modalities of learning, including, for example, academics who engage with their emotional life, or practice-based learning outside classrooms and lecture

24

Introduction

halls and in the field. Without reform of the university sector itself, however, including changes in how professors are trained, transformations in how they understand what they are doing, and also changes to the physical structures of the university, it is unlikely that such reforms will be taken up. In other words, the case for any strategy to prevent torture being adopted depends on the merit of the strategy or tools, their suitability for the object “on which” they would be working, (security sector organizations) and their consonance with the field “in which” they would be working (human rights organizations). Chapter 5 is concerned with the “in which” dimension of the analysis. The field of human rights, or dominant human rights approaches, are not, I argue, neutral in their fundamental assumptions, their orientations, or their habitual practices and preferred styles. On the contrary, the social imaginary of human rights is one that places particular emphasis on human beings as autonomous, and accordingly as responsible agents. Chapter 5 explores this existing social imaginary by looking at the philosophical underpinnings of the human rights idea, the dominant orientations of human rights professionals, and the types of stories that human rights organizations tell about violations. The implication is that, as currently constituted, human rights approaches may not provide a frictionless or hospitable “in which” for robust situational approaches to prevention. Because social imaginaries are not merely abstractions, but have their real existence in the lived practices and meaning-making activities of communities, the development of a new, more hospitable social imaginary for human rights could only occur through the development and uptake of altered practices and ways of making meaning in the field itself. Nevertheless, in the final part of the chapter, I place a stake in the ground towards this process by beginning to articulate ontological stories that might nourish a human rights imaginary more hospitable to a capacious ecological understanding of causality. Chapters 6 and 7 then consider how the more conceptual material presented in the previous chapters played out in the Torture Prevention Project, the project where we sought to address systemic factors in the security sectors in Sri Lanka and Nepal. As I explain at the outset of Chapter 6, this project is not presented as a successful intervention and thus as a model to emulate, but rather as an occasion to think through the realities of practice and the types of real-world impediments that an intervention that seeks to address situational factors may face. In Chapter 6, I introduce the project, set out its overall logic, and then discuss the research process, explaining how we tried to get our hands on the factors that condition torture through a combination of more universal multidisciplinary research, and site-specific empirical research. In this context,

Introduction

25

I discuss some of the methods that we used, but also the difficulties in gaining access to the sites and sources where one might find the most accurate information about how security sector organizations operate, their cultures, processes, and structures. The chapter then looks at the second dimension of the research, corresponding to the second half of the ToC, which was concerned with what we know about how to bring about change to the identified situational factors. In this regard, I commence by reflecting on some of the conceptual and methodological conundrums that arise when asking this question. For example, given the distinctive operational modes of security sector organizations, and the distinctive character of human rights violations, can what we know about organizational, normative, and behavioral change in other settings be considered relevant or transferable? Affirming that there is merit in a cautious and tailored application of some of the principles and practices derived from other sectors, I then consider some of the key principles to have emerged from research into organizational cultural change and from public health interventions in relation to pathological behaviors. Two of the principles that consistently emerge from these bodies of research are that deep and sustainable organizational change is best effected where there is leadership for change coming from within the target organization, and where both the leadership and the rank and file can be enrolled in the change. These principles stand in a fairly sharp contrast to the traditional modality of human rights interventions, which have sought to use various forms of force, principally the force of law or the force of civil society pressure, to require that security sector organizations change their processes and systems. Enrolling perpetrator organizations in the project of human rights reform has for the most part been considered a contradiction in terms. Bringing these bodies of knowledge to bear on traditional human rights approaches then raises a question. Does the suggestion that systemic change might be brought about by working “with the grain” of security organizations represent a naive failure to understand the inevitable conflict between organizations in which human rights violations are endemic and the political interests they embody on the one hand, and human rights principles and advocates on the other? Or could these principles inform a productive approach to organizational transformation that would support the realization of human rights norms in the everyday processes and practices of security sector personnel? In Chapter 7, I turn finally to describe the intervention design that we came up with and to reflect on what happened when we tried to implement it. To understand what actually happened, I depict the intervention as unfolding between the ideals of design and what I call the realities of practice. In the case of a design that adopts an ecological and situational model to understand the

26

Introduction

etiology of torture, the ideal of design will always be stymied by the realities of practice, which will always constrain the scope of the intervention and may preclude intervening precisely in those parts of the system that are most critical. What will determine success will then be a combination of right design, and practical realities that include the right apertures for intervention. At the same time, in the case of our project, which involved trying to bring about authentic security sector reform by working from the inside, the realities of practice always threatened the dangers of blocking, deflection, and cooptation. The chapter then moves through the five main stages of the intervention, tracking in some detail how we sought to capitalize on the advantages of working from the inside while avoiding these dangers. Reflecting on how we managed the tensions of working on the inside, it concludes that, for the most part, the effort to imbed change within the organizations diluted the interventions, or diverted change away from those structures, processes, and cultural practices that actually drive torture. Nevertheless, the way in which this process of diversion occurred and a reflection on what impeded our getting at the most critical situational factors may be instructive for future interventions seeking to build on an ecological and situational approach. In the book’s conclusion, I seek to take the insights gleaned from the conceptual, empirical, and experimental dimensions of the book and the project to suggest how it might contribute to more robust, sustainable, and ultimately effective prevention of torture. To create a consistent thread that weaves through this winding and sometimes dense narrative, each chapter is preceded by a short vignette drawn from the field and that in some ways captures the themes raised by the chapter. These vignettes are intended to animate what might otherwise become overly abstract. They are also intended to remind the reader and writer that any scholarly analysis of torture and the prevention of torture has merit only to the extent that it is grounded in, and returns to the world.

Vignette 1

Before the European Union would agree to fund us to undertake a project that involved working directly with the police in Nepal, they insisted that we had formal evidence that they would work with us. Our partner in Nepal obtained this formal agreement, filling out the correct “Associate forms,” signed by the correct people on the correct lines. Everything seemed to be in order, not in the sense that we could be sure that the relationship would work, but we thought that we had one in place. When it came to actually doing the work, though, it turned out that those forms carried less authority than I had attributed to them. When the time came to actually go in to conduct interviews and participant observations in police stations, with a view to later developing and testing an intervention with the police, it became clear that the correct forms were just that and no more. The true process of gaining agreement had to begin again. It’s about a year into the project, and some of the members of the team are in Nepal, so a meeting is organized with the senior police personnel who are empowered to make the type of substantive agreement that will actually provide us with access. We walk into Police HQ in central Kathmandu, and are taken upstairs to a room, packed with officers in light blue uniforms, the most senior sitting in the middle and the rest sitting in chairs around the periphery. I remember looking out the window and seeing a small demonstration taking place in the street outside. We are invited to come and sit in the central area, and then asked to explain what it is that we propose to do to “prevent torture” in Nepal. The word “torture” was, unsurprisingly, already a potential flash point, one to be treated with care lest the conversation break down before it had even started. The most senior officer turns to me and tells me, “We get proposals from people who want to work to help improve human rights in our organizations all the time – letters arriving every week. Almost all of them end up over there 27

28

Vignette 1

in my waste paper basket.” He gestures toward the desk. To a cynical ear, this might have been a way of telling me he had no interest in hearing about any effort to prevent torture, but I don’t think he was. I heard him communicating to me that the business of preventing torture in countries in the Global South like Nepal was all too popular for Northern activists, and asking what we were bringing to the table that would be any different. Of course, how one interpreted his words would depend on whether one believed he had any interest in preventing human rights violations in the organization, or whether cooperation was a cosmetic strategy to keep critics quiet. From the early 1990s, Advocacy Forum (a grassroots Nepali nongovernmental organization) had been doing groundbreaking work, supporting lawyers and paralegals to visit places of detention and collect statistics on the incidence of torture throughout Nepal, and sending their findings out to the international human rights community. This had put torture in Nepal onto the international human rights map. Since then, there had been extensive interest in what ought to be done there, and a raft of torture prevention projects. Nepal had ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in 1991; the Special Rapporteur on Torture made a country visit in 2005, following it up with an extensive report in 2006 making a range of recommendations for reform; and there have been various pushes, with some limited success, to enact legislation criminalizing torture or providing compensation for victims. Numerous international and domestic organizations have tried, so far without success, to get Nepal to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), and I lost count of the trainings I heard about that different organizations had developed and sometimes delivered for Nepali security personnel. Now the civil war was over, and the violent conflict between security forces and the Maoist rebels had passed, as had the worst days of torture. This made it possible for some people to frame conversations about torture that conveniently placed it in the past, nevertheless admitting that some incidents of torture persisted as remnants of the past. In truth, torture persists in Nepal, albeit in less dramatic forms or settings. The various efforts to implement strategies designed to put an end to torture have come to a halt somewhere short of success. The constant political turmoil has certainly not helped. Getting the agreement of the leadership was critical to getting access to work from the inside in the way we had planned to. I’m still not quite sure why

Vignette 1

29

he agreed. Perhaps what we were proposing sounded a little different to what he had seen before. Perhaps he liked the idea of a project that didn’t involve interrogating and exposing. Naming and shaming had certainly become the standard form of relationship between human rights advocates and police. Working outside of this adversarial model was always going to be ethically complicated.

1 The Principal Approaches to Preventing Torture

1 THE DILEMMA OF THE PERSISTENCE OF TORTURE

Secrecy or concealment is one of the distinguishing features of modern torture; its commission is almost always shielded from public view.1 And yet, largely due to the work of individuals, communities, and organizations dedicated to exposing the incidence of torture and its devastating effects, since the early 1970s, we have witnessed the emergence of extensive engagement across the globe with the reality of torture and the challenge of how to eradicate it. Torture has been subject to extensive activism and advocacy, principally through transnational and local human rights nongovernmental organizations (NGOs) seeking to prevent its use and to bring perpetrators to justice and justice to victims,2 as well as through the work of health professionals developing treatment for torture survivors at both an individual and a community level.3 At the same time, scholars have studied torture through various disciplinary lenses (moral philosophy, political science, law, history, trauma studies, literature, and public health) with a range of goals. These include formulating and articulating the reasons why we ought to recognize torture as an absolute wrong (or, in fewer cases, articulating moral justifications for the 1

2

3

Darius Rejali, Torture and Democracy (Princeton, NJ: Princeton University Press, 2009). The most famous rendering of the shift from the public exhibition of torture to its movement into spaces of detention is provided in Michel Foucault’s Discipline and Punish: The Birth of the Prison, translated by Alan Sheridan (New York: Vintage, 1977). The key international human rights NGOs such as Amnesty International and Human Rights Watch have worked extensively on torture, but there are also specialist international antitorture NGOs such as the APT, the World Organisation Against Torture, DIGNITY, and Redress, as well as a plethora of domestic-level NGOs that work on torture prevention at the more local level. The International Rehabilitation Council for Torture Victims is the international umbrella organization comprising approximately 140 torture rehabilitation and treatment organizations in about seventy countries.

30

1

The Dilemma of the Persistence of Torture

31

use of torture), tracing how torture has been used and how techniques of torture have been transmitted across history and context, documenting its effects, uncovering its causes, identifying ways of healing its victims or discouraging its perpetrators, and working out how we might create a world without it.4 Already in the wake of revelations of the Nazis’ use of torture, its absolute condemnation was codified in the earliest global human rights treaty, the Universal Declaration of Human Rights (Article 5), adopted in 1948, and subsequently enshrined in the International Covenant on Civil and Political Rights (Article 7), adopted in 1966. Heightened publicity of the use of torture even after countries had ratified this convention, principally in the authoritarian regimes of Latin America, but also by the British in the context of Northern Ireland and somewhat earlier by the French in Algeria and Indo-China, catalyzed vigorous anti-torture activism. Then, in 1984, as a result of this early advocacy, torture became the subject of a new distinct international treaty – the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), more commonly known as the Convention Against Torture.5 Indeed, within the human rights canon, torture is held to be such a grave violation that in customary international law the right to be free from torture is considered one of the few non-derogable rights, meaning that it cannot be suspended or compromised under any circumstances – not war, not a state of emergency, and not even a hypothetical ticking time bomb scenario.6 Of course, this formal legal insistence on non-derogability has not been transposed into more popular 4

5

6

The literature is too vast to reference but key texts across these different disciplines include Manfred Nowak, Elizabeth McArthur, and Kerstin Buchinger, The United Nations Convention against Torture: A Commentary (Oxford: Oxford University Press, 2008); Jeremy Waldron, Torture, Terror, and Trade-Offs: Philosophy for the White House (Oxford: Oxford University Press, 2010); Rejali, Torture and Democracy; Sanford Levinson, Torture: A Collection (Oxford: Oxford University Press, 2004); Metin Bas¸og˘lu, Torture and Its Consequences: Current Treatment Approaches (Cambridge: Cambridge University Press, 1992); Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (New York: Oxford University Press, 1985); Talal Asad, “On Torture, or Cruel, Inhuman, and Degrading Treatment,” Social Research 63, no. 4 (1996). Matthew Lippman, “The Development and Drafting of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” Boston College International and Comparative Law Review 17 (1994). On non-derogability, see Article 4 of the ICCPR and the Committee Against Torture, General Comment 2, Implementation of Article 2 by States Parties, UN Doc. CAT/C/GC/2/CRP. 1/ Rev.4 (2007). The ticking time bomb scenario asks that we imagine that a detainee knows where a ticking time bomb is and asks whether one would be justified in using torture to obtain this information. It has been subject to extensive philosophical debate, but see in particular Henry Shue, “Torture in Dreamland: Disposing of the Ticking Bomb,” Case Western Reserve

32

The Principal Approaches to Preventing Torture

views about torture, where it is precisely these types of circumstances that are almost always invoked by those who wish to defend the use of torture.7 Nevertheless, within the human rights world, and building on the foundations of this international legal condemnation, since the 1980s we have witnessed the development of a considerable suite of organizations, programs, projects, strategies, and tools aiming to prevent torture. Such strategies include advocating for states to ratify the UNCAT and complementary regional human rights treaties condemning torture; pushing for the enactment of domestic laws implementing international legal standards, specifically by criminalizing torture and compensating victims; developing mechanisms for monitoring places of detention; researching when, where, and how torture is occurring and then exposing the practices and shaming perpetrators of torture; seeking to bring about reforms in the criminal justice system, including the development of laws concerning admissibility of evidence obtained under torture; developing codes of conduct for professionals who may be directly or indirectly involved in torture (prosecutors, judges, police, doctors, and so on); tracing and seeking to prevent the distribution of instruments of torture; and training security sector and law enforcement personnel in the norms and laws regarding torture. Such initiatives have been driven and implemented by international institutions such as the UN Special Rapporteur on Torture and the Organization for Security and Co-operation in Europe (OSCE), transnational NGOs like Amnesty International and the APT, and a myriad of domestic NGOs and civil society organizations, and they have been funded by a range of international organizations like the European Union and human rights-oriented foundations. And yet, torture persists, and in many parts of the world, it remains endemic.8 Indeed, since the world learned that the United States and its allies

7

8

Journal of International Law 37 (2005); Robert Brecher, Torture and the Ticking Bomb (Malden, MA: John Wiley & Sons, 2007). For examples of such popular debates, see PBS: Public Broadcasting Service, “The Torture Question,” Frontline, PBS, October 18, 2005, www.pbs.org/wgbh/pages/frontline/torture; “Is Torture Ever Justified?,” The Economist, September 20, 2007, www.economist.com/node/ 9832909. For a more recent discussion of contemporary debates concerning the ethics of torture and “ticking time bomb” justifications, see Rebecca Gordon, Mainstreaming Torture: Ethical Approaches in the Post-9/11 United States (Oxford: Oxford University Press, 2014). My reference to popular debates should not imply that the use of torture is not also defended in the academy. See, for example, Alan M Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (New Haven, CT: Yale University Press, 2002). Arguments concerning the persistence of torture can be found in Jeremy Wisnewski, Understanding Torture (Edinburgh: Edinburgh University Press, 2010), 1–3; Rejali, Torture

1

The Dilemma of the Persistence of Torture

33

systematically used torture in the War Against Terror,9 and even more so since US officials at the highest levels endorsed the use of torture against those labelled terror suspects,10 we have reason to conclude that the headwind that had gathered behind an at least nominal global endorsement of the absolute norm against torture has lost some of its force. This lapse is by no means because the opponents of torture have quelled their efforts. Rather, the voices of those who endorse, or probably more often of those who accept the instrumental justifications for, torture have been bolstered by a shifting global discourse in which security now poses serious competition to human rights as an organizing norm guiding law and policy.11 Even aside from the attacks on the United States on September 11, 2001 and the subsequent War Against Terror, and their effects on global politics and discourses, evidence indicates that in many parts of the world, significant proportions of populations have never ceased seeing torture as justified, necessary, or appropriate under certain circumstances.12 For some, torture is justified by extreme threats posed to civilian populations, or more accurately by extreme threats that they fantasize might be minimized by torturing suspects or their associates. For others, torture is seen as appropriate when you are dealing with certain types of people. As we repeatedly heard in our research in Nepal and Sri Lanka, when confronted with hardened criminals, those thought to be uneducated or uncivilized, and even young people who use drugs, “there is nothing much wrong with police giving them a beating.” This situation presents us with a dilemma. How is it that even as we have seen a substantial expansion in the intellectual, organizational, and financial

9 10 11

12

and Democracy. The detailed country reports of the UN Special Rapporteur on Torture provide perhaps the most accurate and up-to-date information at a global level. Links to a broad range of country-specific studies can be found on the Atlas of Torture, www.univie .ac.at/bimtor/countrymap. See Greenberg and Dratel, The Torture Papers. Mark Danner, “Torture and Truth,” New York Review of Books 35 (2004). Often adopting the idea of “human security,” there are those who still argue that security and human rights are complementary, not antagonistic, as against those who insist that security may require the compromise of human rights. See Benjamin J Goold and Liora Lazarus, eds. Security and Human Rights (Oxford: Hart Publishing, 2007). For findings on public opinion, see Steven Kull et al., World Public Opinion on Torture, Program on International Policy Attitudes, University of Maryland (2008), http://worldpubli copinion.net/wp-content/uploads/2016/06/WPO_Torture_Jun08_packet.pdf; Peter Miller, “Torture Approval in Comparative Perspective,” Human Rights Review 12, no. 4 (2011). More recently, questions on attitudes to torture were also included in International Commission of the Red Cross, “People on War: Perspectives from 16 Countries” (Geneva: ICRC, 2016). On the significant methodological problems with drawing conclusions based on public opinion surveys, see Paul Gronke et al., “US Public Opinion on Torture, 2001–2009,” PS: Political Science and Politics 43, no. 3 (2010).

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The Principal Approaches to Preventing Torture

energies invested in preventing torture, the problem persists with such tenacity? There are a few ways one might answer this question, but even before one considers those answers, it’s worth pausing and reflecting on the robustness of the question itself. For, although we know that torture persists, the data that we have and evaluation studies available to us do not put us in a sound position to come to clear or robust conclusions about how much impact existing efforts have had. In the absence of reliable, longitudinal data and rigorous social scientific evaluation, we can draw no definitive conclusions about how effective torture prevention strategies have been. And we never have access to the counterfactual: what torture rates would look like had these interventions not been made. In the absence of a counterfactual that might offer a comparison – a world without anti-torture campaigns or the suite of other strategies – we cannot know how much worse matters might have been. Indeed, as I will discuss in Chapter 2, studies that have been conducted on the effectiveness of torture prevention strategies come to inconsistent conclusions.13 Nevertheless, as a prerequisite to thinking through, developing, and implementing prevention strategies for the future, it is important to take stock of the approaches that have been adopted in the past to get as accurate a read as possible of whether they have been effective, what about them has or has not been effective, and why. After all, the modern human rights movement is now less than seventy years old, and the dedicated fight against torture really less than forty years old. To do this, we would do well to try to work out how existing strategies conceived of the causes of torture, how they imagined that what they were doing would affect those causes, whether their practice in fact matched their plans, and what their actual effects were. To this end, this chapter sets out the principal prevention approaches that have been developed and pursued since the mid-1980s and tries to make explicit the intervention logic or ToC that underpins them. As discussed in the Introduction, all human rights interventions are based on a ToC, or a theory about what causes the violation and how what one is doing will shift those causal dynamics, even if this theory is (as is often the case) only implicit. Making explicit the implicit Theories of Change of existing prevention strategies places us in a better position to engage critically with their understanding of causality and the efficacy of the strategies they suggest for addressing the identified causes. Having laid out these approaches, and the Theories of Change that underpin them, in Chapter 2 I will turn to what we know about their effectiveness. First 13

Emilie M Hafner-Burton and James Ronn, “Seeing Double: Human Rights Impact through Qualitative Eyes,” World Politics 61, no. 2 (2009).

2 What Do We Mean When We Talk about Torture?

35

though, some greater specificity of the object of our analysis, torture, is in order. 2 WHAT DO WE MEAN WHEN WE TALK ABOUT TORTURE?

From the bird’s eye view of international law, definitions of torture are relatively straightforward. The definition set out as Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and accepted in international customary law specifies that:14 The term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

This definition seems to afford a fair amount of specificity, at least insofar as it sets out explicit criteria for the types of acts that count as torture. These include criteria concerning the effects that an act has to have if it is to be torture (severe pain and suffering), the required state of mind of the perpetrator (intentionality and having specific purposes in mind), the types of actors whose actions can count as torture (public officials or those acting in this capacity), and the purposes toward which they must be acting (to obtain information or a confession, to punish, to intimidate, to coerce, or for other reasons based on discrimination). What, though, about the other acts specified in the name of the convention, that is, cruel, inhuman, or degrading treatment or punishment? These are defined with far less clarity, and in fact one can find no internationally agreedupon legal definition for them. The general consensus is that these different forms of treatment can be placed on a continuous scale of increasing severity leading up to torture. At the same time the UN Human Rights Committee has held that it is not necessary to establish sharp distinctions between the different 14

On the acceptance of this definition as customary international law, see International Criminal Tribunal for the former Yugoslavia (ICTY), December 10, 1998, Prosecutor v. Anto Furundzija [1998] ICTY 3, § 160.

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The Principal Approaches to Preventing Torture

kinds of treatment or punishment and that such distinctions depend on the nature, purpose, and severity of the treatment applied.15 Similarly, the European Court of Human Rights has noted that as societal expectations of standards of treatment increase, acts can move from the lower to higher categories, thus acknowledging the historical nature of the definition.16 One way of handling this apparent definitional slide (between what we ought to call torture and what we ought to call degrading treatment) is to deem that all of the acts named here need to be the targets of preventative work. This decision would be formally justified insofar as they are all prohibited, and substantively justified because all are deeply harmful in the obvious sense of causing direct damage to the dignity, health, and integrity of the victims as well as to their families and communities.17 In this regard, one enters dangerous territory when one presumes that the severity of the act, measured according to some putatively objective metric, is correlated with the gravity of the harm. Indeed, when researchers have looked at how victims experience the damage caused by torture and other forms of inhuman and degrading treatment, focusing on effects such as depression, post-traumatic stress, and longterm psychological damage, they have come to the conclusion that the perceived distress and uncontrollability of the treatment matters more than the “class” of violence.18 At the same time, all of these acts engender a far broader type of damage – to the trust that citizens have in the state and security forces, to the integrity of the rule of law, and to the social and political fabric of a political community in which power is exercised through inflicting such arbitrary, unpredictable, and severe violence. In this respect, the political, social, and institutional damage caused by the more extreme acts that we

15

16 17

18

UN Doc. HRI\GEN\1\Rev.1 at 30 (1994), Human Rights Committee, General Comment 20, Article 7, § 4. Selmouni v. France (1999) 29 EHRR 403, at para.101. On the physical effects of torture, see Anne E Goldfeld et al., “The Physical and Psychological Sequelae of Torture: Symptomatology and Diagnosis,” Journal of the American Medical Association 259, no. 18 (1988). On psychological effects on victims, see Zachary Steel et al., “Association of Torture and Other Potentially Traumatic Events with Mental Health Outcomes among Populations Exposed to Mass Conflict and Displacement: A Systematic Review and Meta-Analysis,” Journal of the American Medical Association 302, no. 5 (2009); Ellen Gerrity, Terence M Keane, and Farris Tuma, The Mental Health Consequences of Torture (New York: Springer Science & Business Media, 2001). Metin Bas¸og˘lu, Maria Livanou, and Cvetana Crnobaric´, “Torture vs Other Cruel, Inhuman, and Degrading Treatment: Is the Distinction Real or Apparent?,” Archives of General Psychiatry 64, no. 3 (2007). On broader family impacts, see Jeremy Woodcock, “Healing Rituals with Families in Exile,” Journal of Family Therapy 17, no. 4 (1995). On the collective trauma associated with torture, see Jack Saul, Collective Trauma, Collective Healing: Promoting Community Resilience in the Aftermath of Disaster (New York: Routledge, 2013).

2 What Do We Mean When We Talk about Torture?

37

might call torture, and that tend to occur under particular political conditions, and the damage caused by those forms of violence that are more pervasive and normalized in the day-to-day operation of certain security agencies, may have a somewhat different accent, but are both highly corrosive. For the purposes of this analysis, then, I will not distinguish between those acts that might formally be considered torture and those that might attract one of the “lesser” designations. Rather, I refer to the entire scale as “torture.” Insisting that for definitional purposes the full scale of acts be designated torture should not be taken as implying that from a substantive point of view, they all fall into a single category. Nor does it imply that once we understand the torture that takes place under conditions of heightened conflict or in the context of extreme political repression, we also understand the torture that occurs as a matter of routine in police stations throughout the world. On the contrary, as I suggested in the Introduction, the causal dynamics associated with the types of torture that attract the most public attention, torture ordered by political elites against high-value detainees, are importantly different to the dynamics associated with routinized and everyday beatings, often of members of marginalized groups. The failure to distinguish between these quite disparate scenarios will impede our ability to develop strategies appropriate to each. As will become apparent in this study, my principal interest lies not with what I refer to as the sharp and spectacular end of torture, but rather with the broad base, the more commonplace and everyday forms of torture that pervade security institutions in their routine activity, rather than their exceptional activities. Indeed, a further reason for placing all these forms of ill-treatment under the same designation of absolutely prohibited acts is precisely to erect a barricade against the contestation that we so often hear concerning what ought to count as “real” torture.19 As the definition cited at the start of this section indicates, the UNCAT does not provide a list of prohibited acts, nor do any of the authoritative interpretations (such as General Comments of the Committee Against Torture). This is intentional.20 To do so would risk acts that had not been anticipated escaping the definitional net. The downside of guarding against preemptive exclusions is that the lack of act-specificity opens the space for arguments to be made that certain forms 19

20

Doris Graber and Gregory Holyk, “What Explains Torture Coverage during War-Time? A Search for Realistic Answers,” in Terrorism and Torture, edited by Werner GK Stritzke et al. (New York: Cambridge University Press, 2009). As the Human Rights Committee states, it does not “consider it necessary to draw up a list of prohibited acts”: UN Doc. HRI\GEN\1\Rev.1 at 30 (1994), Human Rights Committee, General Comment 20, Article 7, § 4.

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The Principal Approaches to Preventing Torture

of violence committed against people in detention are not actually torture, and such arguments are perennial. The most well known were those set out in the infamous US torture memos, where advisors in the administration of President George W Bush argued that even extreme acts of violence such as prolonged standing, sleep deprivation, and exposure to excessive light and noise did not constitute torture because they did not cause pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”21 The extremity and blatant manipulation of the official definition evident in this argument made it an obvious and highly remarked upon affront to legitimate definitional interpretation, but it is only an example of a far more widespread practice. The Bush-era torture memos provide the most vivid example of the attempt to try to pull the definition so far back as to exclude from its ambit some of the most extreme forms of torture, but in fact, it is generally at the “lower end” of the scale that this type of contestation occurs. Security personnel and others within the criminal justice system who swear their allegiance to the norm against torture may well, at the very same time, reject the idea that “a few slaps” or a beating for someone from a marginalized group really constitutes torture. By so doing, they manage to continue to assert that they condemn torture as an absolute wrong; but the wrong to which they are referring is one that occurs somewhere else, and is far graver than anything they are doing or authorizing. The result of this definitional slippage is that there may appear to be normative agreement between human rights defenders and security personnel, and often there is at a nominal level. It is when we dig a bit that we discover that our agreement was only possible because we were assuming different referents. We cannot take for granted that the word carries a universal designation in use; and this is even before we get to the more difficult and obviously politicized contestation about when circumstances require that our moral judgments be modified. In this latter case, people might even agree that an act constitutes torture, but the moral inflection of this designation may vary among them, depending on the circumstances of its use. In such cases, even denotative agreement belies a vast gap in what different people believe follows from this designation. Torture, in other words, never simply names a positive act, it also always includes a moral judgment.

21

This specific definition was set out in the memo sent from Assistant Attorney General Jay S Bybee to Alberto R Gonzales, Counsel to the President, on August 1, 2002. See Greenberg and Dratel, The Torture Papers, 172ff.

2 What Do We Mean When We Talk about Torture?

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What this opens up is a problematic set of questions about meaning – problematic for both conceptual and moral reasons. This is not the place to enter into complex discussions of theories of meaning and the philosophy of language, but as soon as we start thinking hard about torture and the business of preventing torture, we find ourselves mired in precisely the questions that these branches of philosophy seek to understand.22 Does the word “torture” designate an objectively verifiable set of actions in the world in a way that would (or should) attract universal assent (as my initial discussion suggested)? Or is it more context dependent, with different people having different understandings in accordance with its localized use? This latter understanding would be consistent with the empirical evidence, which shows us that differently placed people do understand torture as referring to different types of acts and different types of situations. It would also be consistent with the argument of hermeneutic philosophers such as Gadamer, who insists that it is impossible to escape prejudicial interpretations of the world, because these are the windows to our experience.23 If this is the case though, how do we justify the distinction between understandings and uses that are better or worse in some absolute sense? From the point of view of those defending human rights and seeking to prevent torture, and even more so from the point of view of those who experience torture, even to ask these questions may seem like a dangerous, if not unethical enterprise, ushering in the very moral relativity that the human rights idea was established to expunge and that human rights defenders have been working to combat. And they would be right. Torture has a particular set of referents and a particular moral inflection: it is an absolute wrong. Insisting on this understanding has been one of the most important achievements of the international human rights movement. And yet, effectively working with people who do not accept this definition and normative stance may sometimes require more than the unbending assertion of this position and insisting that it is the only possible stance a reasonable and ethical person could take. A more active interest in how those who disagree are making sense of the world and how their understanding of torture is embedded in their broader worldview and environment, how it is, in short, contextually and historically produced, may, under certain 22

23

I have in mind here principally Wittgenstein’s challenges to traditional theories of meaning and his contention that meaning is use, and the vast literature surrounding these debates. Ludwig Wittgenstein, Philosophical Investigations (PI), 4th edn., edited and translated by PMS Hacker and Joachim Schulte (Oxford: Wiley-Blackwell, 2009). As Gadamer puts it, “Prejudices are biases of our openness to the world.” Hans-Georg Gadamer, Philosophical Hermeneutics (Berkeley, CA: University of California Press, 1976), 9.

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conditions, have an important contribution to make to working out how to bring about change.24 As Rachel Wahl has so poignantly illustrated in her work on police torture in India, the reality we may be facing when we come to work with security personnel is that they have very different understandings of torture. Indeed, in her research with police officers who had undertaken human rights training, such understandings persisted even after they had spent a considerable time in human rights education programs.25 Even more importantly, the way in which they conceive of the relationship between torture and a set of related concepts like justice, morality, and respect may be very different to the constellation of those concepts as organized by those who adhere to the human rights framework. Wahl’s research indicates that for some security personnel, for example, torturing a hardened criminal may be understood as a form of justice, where justice involves a view of respect for victims of crime and frustration with the corruption and torpor of the formal criminal justice system. Without accepting the legitimacy of this understanding, the advantage of adopting a hermeneutic approach is that, as Gadamer argues, it offers the possibility for bringing reflexivity to the meaning-making process itself. As he puts it, “reflection on a given pre-understanding brings before me something that otherwise happens behind my back.”26 Moreover, if meaning-making is a situational activity, it is also a fluid one, because the process of interpretation is a continuous one. Understood thus, we also recognize the possibility of altering situations such that the meaning-making process changes and our interlocutors thereby shift their understanding of torture. In this regard, I would argue that in some instances, the most practically ethical position for human rights defenders to take with respect to the definitional question may be one that requires their occupying two slightly different positions; that is, to insist that torture has a definite referent and an absolute moral meaning, at the same time as appreciating that the very people whom they need to endorse this substantive and moral meaning may not, at this particular moment, accept this definition. Moreover, while resolutely disagreeing with their unwillingness to call certain acts torture, it may be important to appreciate that their position is not indicative of their absolute

24

25 26

“The real meaning of a text, as it speaks to the interpreter, does not depend on the contingencies of the author and his original audience. It certainly is not identical with them, for it is always codetermined also by the historical situation of the interpreter . . . Not just occasionally but always, the meaning of a text goes beyond its author.” ibid., Truth and Method, translated by Joel Weinsheimer and Donald G Marshall, 2nd revised edn. (London: Continuum, 2004), 296. Wahl, Just Violence. Gadamer, Philosophical Hermeneutics, 8.

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immorality, amorality, or self-interested reasoning, but rather consistent with their distinct way of making meaning of the world and correlated with the way their world is arranged. Taking this stance does not entail moral relativity; it rather demands a type of realism that might allow advocates to more strategically engage in the obdurate work of bringing about change. Of course, it will not always be necessary, and it will be sometimes highly inadvisable, to take this stance. If, for example, advocates have access to the power to require change, or if they are working with communities whose experience of torture has been denied or euphemized, what is required is an uncompromising and intolerant assertion of the legal definition of torture and its absolute normative status. Before leaving the definitional questions, it’s worth noting that as solid as the international legal definition of torture seems to be, and indeed as solid as human rights defenders need it to be, it is not only those who see it as too onerous or context-insensitive who contest it and object to its over-inclusivity. From the other side, there are those who believe that the definition is underinclusive. Feminist scholars and activists in particular have argued that the definitional elements prescribing the identity of people whose acts can count as torture, and the purposes toward which an act must be directed for it to be called torture, implicitly gender the definition and thus render it inhospitable to the types of harms suffered mostly by women. They point out, for example, that the UNCAT definition requires that for an act of violence to count as torture, it must have been used to achieve particular objectives related to the work of the state or security organization, such as gaining information or a confession. By contrast, sexual violence against women has traditionally been understood in terms of individual, personal sexual gratification, and thus classified as a private matter.27 Similarly, whereas most violence against women is committed in the private sphere and by private actors (husbands, fathers, brothers, and so on), the definition of torture requires that the one committing torture must be a state official or someone acting in an official capacity. Importing into the definition these public/private distinctions, and with them the elevation of the “public,” effectively downgrades the forms of violence most suffered by women.28 Beyond the feminist critique, in recent years, the specification that the torturer must be a state official or acting in an 27

28

Christine Chinkin, “A Critique of the Public/Private Dimension,” European Journal of International Law 10, no. 2 (1999): 393. On gender and international law in general, see Hilary Charlesworth, Christine Chinkin, and Shelley Wright, “Feminist Approaches to International Law,” American Journal of International Law 85, no. 4 (1991). On gender and definitions of torture, see Andrew Byrnes, “The Convention against Torture,” in Women and International Human Rights Law, edited

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official capacity has become increasingly problematic in light of the role that non-state actors such as private security firms have come to play in fulfilling functions traditionally allocated to state security forces and, with this, committing similar types of abuses.29 In recent years, the jurisprudence of the Committee Against Torture has been responsive to these types of critiques. It has, for example, recognized that rape and sexual violence committed against detainees do fulfil the purpose requirements of the definition.30 In what would seem to be an even more significant reinterpretation of the wording of the treaty, the Committee is also beginning to recognize that sexual violence against women in the private sphere constitutes torture, insofar as the state’s failure to ensure that women are adequately protected from sexual violence constitutes a form of state acquiescence, as mentioned in Article 1.31 In the words of the UN Secretary General, “State inaction . . . functions as approval of the subordination of women that sustains violence and acquiescence in the violence itself.”32 With

29

30

31

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by Kelly Dawn Askin and Dorean M Koenig (Ardsley, NY: Transnational Publishers Incorporated, 2000). For example, the Center for Constitutional Rights in the United States has litigated a case under the Alien Torts Statute against US-based government contractor CACI International Inc. and CACI Premier Technology, Inc. on behalf of four Iraqi torture victims. The suit asserted that CACI directed and participated in torture at the Abu Ghraib prison in Iraq. Under this statute, actions have historically been taken against non-state actors for their participation in human rights violations including torture, and numerous cases have been taken against corporations for their complicity in torture. On this case, see “ Al Shimari v. CACI Premier Technology, Inc.: Fourth Circuit Allows Alien Tort Statute Claim against Abu Ghraib Contractor,” Harvard Law Review 28, no. 5 (2015). On the Alien Torts Statute and its employment regarding non-state actors’ involvement in torture, see Ronen Shamir, “Between Self-Regulation and the Alien Tort Claims Act: On the Contested Concept of Corporate Social Responsibility,” Law and Society Review 38, no. 4 (2004). The first decision was V.L. v. Switzerland, Communication No. 262/2005, 20 November 2006, UN Doc. CAT/C/37/D/262/2005 (2007). This is also reflected in the jurisprudence of other bodies. The Inter-American Court of Human Rights added “humiliation” to the prohibited purposes in the definition in Fernando and Raquel Mejia v. Peru, 1 March 1996, Report No. 5/ 96, Case No 10.970 in Annual Report of the Inter-American Commission on Human Rights at para. 3(a) as did the ICTY Trial Chamber in The Prosecutor v. Anto Furundzija, Case No. IT95–17/1-T, 10 December 1998. The ICTY Trial Chamber also recognized that rape fulfils the discrimination purpose insofar as it is a form of discrimination against women in Prosecutor v. Zejnil Delalic´, Zdravko Mucic´, Hazim Delic´ and Esad Landzˇo, Case No. IT-96–21-I, ˇ elebic´i Judgment), para. 493. November 16, 1998 (C See, for example, UNCAT, “Concluding Observations on the Fifth Periodic Report of Estonia, Adopted by the Committee at its Fiftieth Session (May 6–31, 2013),” where the Committee urged Estonia to adopt comprehensive legislation on violence against women, including domestic violence and marital rape, and to establish effective complaint mechanisms. “In-depth Study on All Forms of Violence against Women by the UN Secretary-General,” UN Doc. A/61/122/Add.1 (2006), p. 34. The quoted words are those of the representative of the Federal Republic of Germany during the debate.

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respect to the question of whether non-state actors can commit torture, the Committee has, by going back to the travaux pre´paratoires, established that the phrase “acting in an official capacity” must be interpreted to include those who “actually hold and exercise authority over others and whose authority is comparable to government authority,” thereby allowing for the inclusion of rebel groups and private security agencies.33 From the point of view of those who look to human rights standards as a tool for fighting forms of violence that diminish dignity and violate the integrity of all people, authoritative interpretive bodies recognizing these more expansive definitions represents an important victory. And this is not only because it permits these authoritative and quasi-juridical bodies to catch a range of previously excluded egregious acts in their regulatory net, but also because of the broader discursive effects. As the title of Rhoda Copelon’s article analyzing the exclusion of violence against women from the definition of torture so well captures (“Recognizing the Egregious in the Everyday: Domestic Violence as Torture”), and as we know so well from the rhetorical strategies that regimes deploy to substitute euphemisms for torture, affording or withholding the moniker “torture” to an act matters to how it is viewed.34 At the same time, and as I have briefly illustrated, we do well to appreciate that these shifts belong to a broader field of ongoing discursive contestation. Once we move beyond the sphere of relatively elite debates about the definition of torture, we remain a long way off from even basic, let alone broader definitions of torture being adopted in the everyday understandings and day-to-day practice of many security organizations or of the populations in which they are embedded. And it is here that what people take torture to mean is critically important, because what they take it to mean shapes what they believe they can and cannot and should and should not do, or what they should or should not approve of others doing. Arriving at a point where the UNCAT definition,

33

34

J Burgers and H Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, vol. 9 (Dordrecht: Martinus Nijhoff Publishers, 1988), 45. At the same time, the structure of domestic law and the types of legal regimes operating in countries subject to foreign intervention, combined with political-level dynamics, may de facto protect private security firms from prosecution for torture and other crimes, even if they are liable under international law. See Jeremy Scahill, Blackwater: The Rise of the World’s Most Powerful Mercenary Army (London: Serpent’s Tail, 2008); Justin H Whitten, “They’re Getting Away with Murder: How the International Criminal Court Can Prosecute US Private Security Contractors for the Nisour Square Tragedy and Why It Should,” Washington University Global Studies Law Review 11 (2012). Rhonda Copelon, “Recognizing the Egregious in the Everyday: Domestic Violence as Torture,” Columbia Human Rights Law Review 25 (1993).

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along with its moral inflection and motivational force, is one that all people embrace is in some respects precisely what we are setting out to achieve. Asserting that it ought to be the case will do little, however, in making it so. I turn now from these definitional debates back to the core work of this chapter, which is to examine how human rights defenders have sought to entrench the absolute norm against torture in the practices of state officials and beliefs of populations across the world. 3 HOW HAVE HUMAN RIGHTS DEFENDERS SOUGHT TO PREVENT TORTURE?

Although the problem of torture had been in the line of sight of human rights defenders since the establishment of the post-World War II human rights framework, the early 1970s has been identified as a critical period during which action against torture was galvanized and strategies significantly ramped up.35 As Manfred Nowak, former United Nations (UN) Special Rapporteur on Torture, remarked, when the horrors that were being exposed in regimes like Pinochet’s Chile made it clear that torture had not passed into history with Nazism or Stalinism, a new generation of activists felt that existing approaches were insufficient.36 Looking back at this period, Nowak distinguishes two “schools of thought” on the question of how to move forward. Both were conceived, according to Nowak, by identifying and then working out how to eliminate “the root causes of torture” in a systematic manner, and both, in various ways, built on existing approaches to prevention.37 The remainder of this section discusses both schools (and their internal variants), as well as

35

36

37

A comprehensive discussion of the history of prevention including the question of periodicity is found in Emilie Combaz, “Ne´gocier l’atrocite´: La torture comme question multilate´rale, 1945–2009: Une e´tude comparative (Nations Unies, Conseil De L’europe, Organisation Des Etats Ame´ricains)” (Paris, Institut d’e´tudes politiques, 2011). Recent debates concerning the historical evolution of human rights have been dominated by arguments contending that the elevated attention to human rights in the 1970s is linked with broader geopolitical trends, including the demise of socialism as a realistic alternative and the rise of neoliberalism. I do not engage with this literature here. The key text in this literature is Moyn, The Last Utopia. For a contrary position, see Philip Alston, “Does the Past Matter? On the Origins of Human Rights,” Harvard Law Review 126 (2013). Manfred Nowak, “On the Prevention of Torture,” in An End to Torture: Strategies for Its Eradication, edited by Bertil Dune´r (London: Zed Books, 1998). Nigel Rodley, who preceded Nowak as Special Rapporteur, points to the manner in which the terms “prevention” and “protection” have been distinguished, with the latter specifically referring to accountability. I use the term “prevention” following Nowak’s more inclusive use. See Nigel S Rodley, “Reflections on Working for the Prevention of Torture” Essex Human Rights Review, 6, no. 1 (2009).

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How Have Human Rights Defenders Sought to Prevent Torture?

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some of the other approaches that have grown around them. Here, my emphasis is on description and trying to make explicit the ToC that animates them, rather than assessing their efficacy, a question I turn to in Chapter 2. Before moving to the description of these schools and their variants, it may be useful to lay out a schema for classifying prevention approaches more generally against which we can map the different approaches to the prevention of torture in particular. Originally developed in the field of public health, but then also taken up by criminologists to schematize approaches to crime prevention, prevention is understood here as falling into three categories: primary, secondary, and tertiary. Primary prevention refers to those approaches that seek to ensure that the problem does not develop in the first place, say through eliminating opportunities for it to arise or changing the norms and structures necessary to its development. Secondary prevention seeks to change the people likely to embark on the criminal behavior, say through early-intervention programs. Tertiary prevention deals with the results of crime, including the punishment of perpetrators and the treatment of victims.38 Although, as we shall see, it may be impossible to neatly place a particular strategy within one category, this schema can nevertheless provide a useful heuristic. (i) The First School: Legal Sanctions and Ending Impunity Turning to the principal approaches, then, the first school centered around establishing international legal standards and instruments specifically dealing with torture and convincing nation states to adopt these standards by ratifying international treaties and then, crucially, implementing the domestic measures (law and policy) required to fully comply with them. While the provisions of the UNCAT (and the parallel regional anti-torture treaties) go beyond the criminalization of torture, and include provisions dealing with issues such as the training of security sector officials and the use of evidence obtained under torture in legal proceedings, it is evident that ensuring that perpetrators were brought to justice and punished was very much at the heart of the first school. That is, its primary objective was to establish laws criminalizing torture 38

On the distinction between primary, secondary, and tertiary crime prevention, see Paul J Brantingham and Frederic L Faust, “A Conceptual Model of Crime Prevention,” Crime and Delinquency 22, no. 3 (1976). On the application to domestic violence as an example of the public health integration of this framework, see David A Wolfe and Peter G Jaffe, “Emerging Strategies in the Prevention of Domestic Violence,” The Future of Children 9, no. 3 (1999).

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The Principal Approaches to Preventing Torture

and then to implement these laws through the prosecution of perpetrators. Analyzing this first school in terms of how it diagnoses the root cause of the problem, this was quite clearly identified as impunity. The strategic logic of the intervention was that getting nation states to ratify international treaties that established torture as an absolute violation of human rights would result in their criminalizing torture and prosecuting perpetrators, and that this in turn would break the cycle of impunity and this, as Nowak described it, would “have a significant preventive effect.”39 The ToC that underpins this approach could be summarized as: “If torture is criminalized and perpetrators punished, impunity can be ended; and if impunity is ended, torture can be prevented.” Stated thus, it would seem that this school would be best classified as a form of tertiary prevention, insofar as it would seem to be addressing the effects of the problem. To stop at this conclusion, though, would be to adopt an overly narrow understanding of the nature of criminal law, and to overlook the expressive, performative, or constitutive dimensions of law, or, as Nicola Lacey puts it, the work that criminal law does in preserving “the framework of values perceived as necessary to the maintenance, stability, and peaceful development of the community.”40 For, as those who developed and advocated for this approach well understood, along with the more direct work of punishing individual perpetrators, and thus acting as both a specific and a general deterrent, the work that passing international and domestic law is intended to do includes altering what is considered normatively acceptable. Law does this by lending the authoritative voice of the international community and the state to back one norm (torture is an absolute wrong) and condemn another (torture is acceptable under some conditions). In this regard, criminalization constitutes a form of primary prevention. At the same time, and consistent with the philosophy of general deterrence, introducing the prospect of punishment constitutes a way of trying to shift the incentive structure for potential perpetrators, and in this regard, it would constitute a form of secondary prevention.41 Nevertheless, I would argue, 39 40

41

Nowak, “On the Prevention of Torture,” 248. Nicola Lacey, State Punishment (London and New York: Routledge, 1988), 176. For a classical statement of the expressive function of punishment, see Joel Feinberg, “The Expressive Function of Punishment,” The Monist 49, no. 3 (1965). On the expressive function of law and its role in shifting social norms, see Cass R Sunstein, “On the Expressive Function of Law,” University of Pennsylvania Law Review 145, no. 5 (1996). On law’s pedagogic function, specifically in relation to atrocities, see Mark Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick, NJ: Transaction Publishers, 1999). Although general deterrence theory and the expressive theory of law are generally thought of as distinct, insofar as they both involve the operation of social norms, they can be seen as

3

How Have Human Rights Defenders Sought to Prevent Torture?

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with Evans and Morgan, that insofar as the emphasis in this school has been on the role of law in enabling the punishment of perpetrators, it has, in practice, principally operated as a form of tertiary prevention.42 If, though, as Nowak pointed out, impunity lies at the heart of this school’s ToC, we ought to pause and consider what impunity and ending impunity entail. As Louis Joinet observed in his report to the UN on this concept, impunity encompasses a number of dimensions, and includes what we might think of as a sequence of failures: the failure to accuse, the failure to arrest, the failure to bring to trial and to convict perpetrators and to implement those convictions, and the failure to compensate victims.43 The failure to punish, in other words, occurs at the end of a sequence that comprises a number of elements. Considering the emphasis on standard-setting that has dominated this first school in light of this richer concept of impunity, it is clear that the mere promulgation of formal laws that criminalize torture addresses only the first dimension of impunity; it provides the possibility of accusation under the law. It is, to go back to the definitional discussion in Section 2, a move toward declaring that in the authoritative eyes of the state, certain acts will be called torture and will be unconditionally condemned. It is not yet, however, condemnation. Developing the institutional, political, and cultural conditions that will translate formal accusability into actual punishment (or another form of accountability considered adequate) requires a far more comprehensive set of interventions and transformations.44 To believe that the formal declaration of state law would in itself be sufficient to comprehensively change the normative status of torture and to reform the operations of the full range of

42

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44

conceptually linked. See Robert D Cooter, “Three Effects of Social Norms on Law: Expression, Deterrence, and Internalization,” Oregon Law Review 79 (2000). Evans and Morgan argue that the overwhelming emphasis in prevention has been tertiary. See Malcolm David Evans and Rodney Morgan, “Torture: Prevention or Punishment?,” in Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation, edited by Craig Scott (Oxford: Hart Publishing, 2001), 136. Louis Joinet, “Appendix B: The Administration of Justice and the Human Rights of Detainees: UN Document E/CN.4/Sub.2/1997/20, 59,” Law and Contemporary Problems 59, no. 4 (1996): 249–281, https://scholarship.law.duke.edu/lcp/vol59/iss4/18. For a review of literature on impunity in human rights, see Meg M Penrose, “Impunity-Inertia, Inaction, and Invalidity: A Literature Review,” Boston University International Law Journal 17 (2000). As Delaplace and Pollard conclude in their review of torture prevention practices, “Such processes demand that NGOs and other international actors view their work as only partially completed once international standards are established and ratified; actual prevention of torture requires an ongoing process of cooperative dialogue between states, human rights mechanisms, and civil society.” Edoaurd Delaplace and Matt Pollard, “Torture Prevention in Practice,” Torture 16, no. 2 (2006): 245.

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institutions required to end impunity would be to fatally overlook the extent to which newly introduced laws enter into a field of legal and normative pluralism and institutional contestation, and to underestimate the hold that informal laws and norms have in everyday institutional practices.45 In this regard, the fundamental criminological insight that formal laws are always mediated through thick institutional practices, and do not simply selfexecute, as if through a transparent medium, is critical.46 Approaching this through the lens of legal anthropology, Sally Engle Merry reminds us that “[c]onsiderable research on law and everyday social life shows that law’s power to shape society depends not on punishment alone but on becoming embedded in everyday social practices, shaping the rules people carry in their heads.”47 Indeed, commenting on Amnesty International’s successful advocacy for the establishment of the UN Declaration on the Protection of All Persons from Being Subject to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Korey observes that “only political naivety would have assumed that a UN Declaration would end the continuation and spread of torture,” adding that “Amnesty hardly fit that category.”48 That this was so was illustrated by Amnesty’s actions immediately following up the adoption of the Declaration, which included going to work on professional codes of ethics for doctors, lawyers, and judges and issuing 116 urgent actions on behalf of five hundred victims across the world. Beyond the work of Amnesty, we might identify a range of campaigns and projects launched by various intergovernmental and nongovernmental institutions and organizations as flowing from (or belonging to) this first school. These range from those encouraging states to ratify and implement international instruments by passing domestic laws sanctioning torture, through those that monitor state behavior and press for 45

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See International Council on Human Rights Policy, When Legal Worlds Overlap: Human Rights, State and Non-State Law (Vesoix, Switzerland: International Council of Human Rights Policy, 2009). As Bullock and Johnson argue in their analysis of the impact of the UK Human Rights Act on policing practices, “Criminologists have consistently argued that the relationship between law and policing (and, in particular, any attempt to use law as a top-down method for achieving change in police practice) must be understood within the context of organizational cultures in which the majority of police officers are ‘characteristically ambivalent’ to law… and regard knowledge of law as less important than an ‘appreciation of local community norms’.” Karen Bullock and Paul Johnson, “The Impact of the Human Rights Act 1998 on Policing in England and Wales,” British Journal of Criminology 52, no. 3 (2011): 632. Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago: University of Chicago Press, 2009), 3. William Korey, NGOs and the Universal Declaration of Human Rights: A Curious Grapevine (New York: Palgrave, 2001): 175.

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How Have Human Rights Defenders Sought to Prevent Torture?

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compliance through periodic reports and complaints processes and through other forms of international and domestic advocacy. Here, one can see the degree to which the substance of the UNCAT and some of the work of the organizations seeking its implementation affirmed the need for primary and secondary prevention strategies. In this context, two formal institutional developments, the UN Committee Against Torture and the UN Special Rapporteur on Torture, have been central to the elaboration of the first school. Like the other treaty committees charged with overseeing state parties’ compliance with their treaty obligations, the Committee Against Torture operates according to a set of fairly standard procedures: assessing and responding to the periodic reports that states are required to submit setting out what they have done to implement the UNCAT and assessing complaints from individuals about alleged treaty violations.49 Upon receiving reliable information of systematic torture, the Committee Against Torture may also authorize an inquiry into the allegations, including a site visit. The Committee’s findings are then confidentially communicated to the state concerned, although it may include a summary of its findings in its (publicly released) annual report. The second key international institution for this school, the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, was not established by the Torture Convention, but rather under the Special Procedures of the Human Rights Council. The advantage of its being established in this way is that its jurisdiction is not limited to states party to the UNCAT, it is empowered to examine the actions of any member state of the UN.50 The most distinctive aspects of the work of the Special Rapporteur are the urgent appeals regarding individuals at risk of torture, fact-finding missions, and inquiries into specific thematic questions, which have included issues such as torture and people with disability or gender-specific aspects of torture.51

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The latter is only applicable where the state has recognized the competence of the Committee to hear such complaints. The Committee is also empowered to assess communications from other states that a state party is not fulfilling its obligations where that state has recognized the competence of the committee to do so, but to date no state has brought such an action. On the Committee Against Torture, see Byrnes, “The Committee against Torture”; Nowak, McArthur, and Buchinger, The United Nations Convention against Torture. See Andrew Byrnes, “International Human Rights Procedures,” in Put Our World to Rights, edited by Commonwealth Human Rights Initiative (London: Commonwealth Secretariat, 1991); Nigel S Rodley, “United Nations Human Rights Treaty Bodies and Special Procedures of the Commission on Human Rights – Complementarity or Competition?,” Human Rights Quarterly 25, no. 4 (2003). For links to thematic reports, see www.ohchr.org/EN/Issues/Torture/SRTorture/Pages/Issues .aspx

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Insofar as both institutions attend to actual state practice, they represent key mechanisms for seeking to ensure that formal commitments made under the treaty are translated into effective action. Moreover, their capacity to do so is enhanced, particularly in the case of the Special Rapporteur, by their ability to collect primary empirical evidence of what is actually taking place through country visits. In practice, although both of these institutions formally belong to the UN system, they draw heavily on the work of international and local NGOs, which gather most of the information on what is actually happening in places of detention and on how states operationalize their treaty commitments, and who are the ones who remain on the ground to press for implementation of any recommendations that these high-level and more remote institutions make. To take an example from Nepal, one of the two countries that were the focus of our empirical work, it was the work of the Nepali NGO Advocacy Forum in gathering data on torture occurring on a systematic basis in places of detention across the country during the civil conflict, and then sending regular communications to the Committee Against Torture and Special Rapporteur, that drew the attention of these authorities to the Nepali situation. This local NGO provided the international bodies with the empirical material that they could use in their reports and diplomatic forays into pressing the Nepali authorities to bring about change.52 In turn, after the international bodies wrote their reports, it was NGOs like Advocacy Forum that continued to leverage their conclusions to press authorities to bring about reforms. Looking at the actual reports of the Committee Against Torture and the Special Rapporteur and at the work of the NGOs that press for implementation of treaty commitments, it is evident that there are dimensions of this first school that go well beyond the question of impunity and punishment. For example, in the report of the mission he carried out in Nepal in 2005, the Special Rapporteur commented on issues such as the failure to ensure that detainees had access to a lawyer, were brought before a judge within twentyfour hours, and were provided with medical examination on arrest and transfer, as well as on the impact that legislation empowering police to detain people incommunicado for extended periods had on the likelihood of torture occurring.53 Reflecting on the development of prevention mechanisms, the occupant of the Office of Special Rapporteur prior to Manfred Nowak, Sir 52

53

Mandira Sharma, “Making Laws Work: Advocacy Forum’s Experiences in Prevention of Torture in Nepal,” SUR – International Journal on Human Rights 11, no. 20 (2014); ibid. Manfred Nowak, Report by the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Mission to Nepal (Geneva: United Nations, 2006), paras 20–22.

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Nigel Rodley, similarly emphasized that prevention entailed eliminating “the preconditions of torture” and that in this regard, torture was well understood as, at least in part, a crime of opportunity.54 The focus on such preconditions is also evident if one looks at international regulatory standards that complement the UNCAT, such as the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, which the UN General Assembly adopted in 1988.55 Nevertheless, one might usefully distinguish between an approach that identifies the need for primary and secondary prevention strategies and that advocates for states to adopt them, and an approach that operationalizes such strategies. In more blunt terms, calling for the conditions of detention to be improved, while a necessary first step, is not the same as working out how such changes can actually be brought about. Given that such changes involve a range of institutional and cultural reforms across the criminal justice system and beyond, this will require a suite of political, legal, and cultural approaches.56 (ii) The Second School: Non-accusatory Monitoring This recognition of the importance of focusing on the preconditions, then, points to the second school (within Nowak’s taxonomy), which involves establishing processes for monitoring sites where there are risks of torture occurring, principally prisons, police lockups, and other forms of detention.57 For the purposes of distinguishing this from a second form of monitoring that I will discuss in Section 3(iii), I call this “non-accusatory monitoring.” Monitoring on this model involves an external body gaining the permission of the authorities concerned, entering the site in question, 54 55 56

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Rodley, “Reflections on Working for the Prevention of Torture.” A/RES/43/173, adopted December 9, 1988. As I will discuss in Chapter 2, Carver and Handley’s study on the impact of different prevention measures clearly indicates that it is practice and not law that has the effect. Law, they suggest, ought not be dismissed, insofar as it is a precondition for practical reforms, but it is not sufficient. Moreover, although they found that across the countries they studied, there had been a steady increase in both the legal and the practical dimensions, practical changes increasingly lagged behind improvements in the legal regime. Carver and Handley, Does Torture Prevention Work? The overlap between the two schools will already be evident in, for example, the monitoring work of the Special Rapporteur, but they more fully merge at the point where international treaties require the establishment of monitoring mechanisms, as was the case when the European Convention on the Prevention of Torture established the European Committee for the Prevention of Torture and, more recently, when the OPCAT established the SubCommittee on Prevention and mandated it to visit places of detention as well as requiring that states party establish national preventative mechanisms (NPMs).

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conducting meticulous research on the conditions of detention, documenting its findings in a politically neutral manner, and giving those findings to the relevant authorities. Insofar as the principal objective of such monitoring processes is to alter the institutional factors that create risks of torture occurring and to strengthen the factors that constrain or inhibit torture, they constitute examples of primary prevention. The International Commission of the Red Cross (ICRC) provided the earliest and original example of non-accusatory monitoring, conducting its first visits to places of detention during World War I, a role that was codified in the third and fourth Geneva Conventions in 1949. Its first incursion into monitoring torture per se occurred when its representatives visited French prisons in Algeria and reported on the torture of Algerian prisoners.58 In the case of the ICRC, still now as then, reports are completely confidential, unless the government of the country under investigation quotes from the report out of context (thus using the findings for its own purposes), in which case the ICRC reserves the right to publish its report in its entirety. The underlying philosophy at work in this form of confidential or cooperative monitoring is that, by virtue of their privileged access, authority, neutrality, confidentiality, and accuracy, monitoring bodies can build relationships and establish a constructive dialogue with state actors that will encourage appropriate reform. Analyzed through the lens of the different levels of prevention, this school, in contrast to the first, falls more squarely in the camp of primary and secondary prevention, focusing on the situation in which the violation occurs and partially on potential perpetrators. Working now since 1987, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has, until recently, been the non-accusatory monitoring body most specifically concerned with torture, although as a regional body its jurisdiction only covers the forty-seven member states of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.59 Like the ICRC, the CPT adopts a basic principle of cooperation and confidentiality, although for the most part states agree to have the reports published. Again, the CPT reserves the right to make a statement concerning its findings if the state fails to cooperate. In arguing in favor of the adoption of this mechanism as 58

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James Dawes, That the World May Know: Bearing Witness to Atrocity (Cambridge, MA: Harvard University Press, 2007); Luis Lema, “Torture in Algeria. The Report That Was to Change Everything,” Le Temps, August 19, 2005. The key text on the CPT is Malcolm Evans and Rodney Morgan, Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Oxford: Oxford University Press, 1998).

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a means for ensuring respect for the provisions of the Convention, the then Secretary General of the International Commission of Jurists emphasized the centrality of the non-accusatory approach to the effectiveness of this school: The sponsors of this proposal consider its great advantage is that it does not involve any public attack or accusation being made against the government concerned. Consequently, the government is not thrown upon the defensive and has no incentive to impose delays, but rather has an incentive to cooperate under a confidential procedure in remedying any abuses which may exist.60

In this statement, one can also discern the theory of organizational change that underpins the non-accusatory approach, albeit one that has not been extensively elaborated. Reading more deeply into this commentary, one can discriminate between two important dimensions of this approach, roughly conforming with the registers of what needs to be done and how to do it. Thus, with respect to the what question, this school seeks to alter the conditions under which torture is likely to occur (primary prevention), or the actors who are at risk of perpetrating (secondary prevention). With respect to the how question, the contention here is that the institutional changes that will be required are best effected through confidential negotiations between authoritative bodies and the state authorities concerned. Or perhaps more accurately, the contention is that the alternative – publicy exposing and shaming states that commit torture – may create impediments to their bringing about the institutional changes that are required. What we are getting closer to here is the all-important question of how to change the preconditions for torture, assuming that we know what those preconditions are. The what question is presumably answered through the work of the monitoring body, closely informed by NGOs closer to the ground, and by a more general understanding of the types of conditions that generally give rise to torture. Finally, and most recently, the OPCAT has established a new international monitoring system comprising a combination of an international monitoring body and state-level bodies to be established by states party.61 The former is a special UNCAT subcommittee, mandated to monitor places of detention 60

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International Commission of Jurists and Swiss Committee against Torture, Torture: How to Make the International Convention Effective (Geneva and Lausanne: ICJ and SCAT, 1980), 24. Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly of the United Nations on January 9, 2003, A/RES/57/199. The regulations described here are set out in the provisions of the OPCAT. For a commentary, see Rachel Murray et al., The Optional Protocol to the UN Convention against Torture (New York: Oxford University Press, 2011).

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across all states party to the OPCAT, but obviously incapable of visiting any one nation state more than every few years, and then only for a short time and in an episodic way. The more constant and regular monitoring work is to be done at the domestic level by national monitoring bodies (called national preventative mechanisms or NPMs) that states party to the OPCAT need to establish and empower to inspect places of detention. The OPCAT allows for states to establish a range of types of monitoring bodies at the domestic level; for example, they may fulfil their obligations by establishing a single NPM, or a number of NPMs specializing in different spheres, for example prisons, or places where people with disability are confined. The OPCAT does, however, set out some of the basic protocols that states must observe to ensure that NPMs can properly carry out their functions, such as providing access to places of detention, permitting confidential interviews with detainees without the presence of witnesses, and protecting from sanction any person who, or organization that provides information to NPMs. On the question of confidentiality, again, as with other monitoring bodies in this category, the process is in principle confidential, consistent with the logic that monitoring bodies can bring about change by working cooperatively with state authorities. As was the case for the ICRC, if a state does not cooperate or if it publishes part of the reports, the subcommittee reserves the right to publish the report in full, and it can also do so at the state’s request. Reports from NPMs are also privileged, although state practice indicates that some are publishing their reports, including reports of visits and thematic reports. Although the APT keeps a database on the OPCAT, which includes information on legal basis, methods of operation, and reporting on NPMs,62 at this point, there is little scholarship on the actual operation of either the subcommittee or the NPMs.63 More than one ToC can be discerned in this form of monitoring. One working assumption is that the presence of outsiders in closed environments, acting as witnesses, is in itself likely to reduce the likelihood of certain abuses occurring, even if those select outsiders do not publicy expose any illegal practices they might observe. This theory would be consistent with what is known as the Hawthorne effect, where the presence of an observer alters the 62

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Association for the Prevention of Torture, “OPCAT Database” (2017), www.apt.ch/en/opcatdatabase.63. See Elina Steinerte, “The Changing Nature of the Relationship between the United Nations Subcommittee on Prevention of Torture and National Preventative Mechanisms: In Search for Equilibrium,” Netherlands Quarterly of Human Rights 31 (2013); “The Jewel in the Crown and Its Three Guardians: Independence of National Preventive Mechanisms under the Optional Protocol to the UN Torture Convention,” Human Rights Law Review 14, no. 1 (2014).

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behavior of the subject, in this case presumably via the mechanism of security personnel’s anticipating that observers who witness abuses would negatively judge them.64 Another ToC might hold that the intervention works through providing the necessary information to the people empowered to bring about change. That is, giving unbiased reports about what is really happening in places of detention to the officials with ultimate responsibility (from the governors of prisons to top state officials) puts these officials into a position of knowing and so being able to act consistent with their responsibilities. Three underlying assumptions support this ToC. The first is that the complexity of state organizations impedes the quick or comprehensive flow of information between periphery and center and so inaction is (at least in part) an artifact of ignorance rather than active support for abuses. The second is that once these higher officials know about the abuses and know that someone else knows about the abuses, they will be more likely to intervene. The third is that following the recommendations of the monitoring bodies will assist authorities in avoiding the costs associated with exposure or noncompliance, and so they have an incentive to do so. Linking this back with my earlier distinction between the question of what needs to be changed and how to bring about these changes, these three assumptions concern the how question, and all point to the importance of providing those in authority with the knowledge about what to change, and establishing a situation where they are incentivized to bring about those changes. Thus, one can see that the efficacy of the approach would rest on two linked achievements. First, the monitoring bodies must correctly identify the factors that create risks of torture occurring (and that themselves may constitute cruel, inhuman, or degrading treatment or punishment) such that if the changes that they recommend are implemented, the risk of torture will be reduced. Second, the people to whom they provide this information must be both willing and able to bring about these changes. Once we think about these conditions, it is evident that the how of change still remains something of a black box, with a myriad of issues concerning willingness, capacity, motivation, and feasibility still left implicit. Put otherwise, between the point of conveying the message that X needs to occur and this change being 64

Stephen RG Jones, “Was There a Hawthorne Effect?,” American Journal of Sociology 93, no. 3 (1992). A similar effect is evident in the more banal scenario of the public bathroom, where people are more likely to wash their hands after using the toilet if they believe that they are being observed, even if the observer is simply a stranger using the same washroom. See Tim Eckmanns et al., “Compliance with Antiseptic Hand Rub Use in Intensive Care Units: The Hawthorne Effect,” Infection Control 27, no. 9 (2006).

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implemented lie a number of difficult challenges that still need to be addressed, but about which the literature on this approach is largely silent. An example well illustrates the point. Various bodies have identified medical inspections of detainees as one procedure that reduces the risk of torture. They do so insofar as medical officers can authoritatively document signs of torture, which can in turn constitute evidence available for judicial proceedings, either to substantiate claims that confessions were obtained under torture, or to mount a case against the alleged perpetrators. One could then well imagine that a monitoring body would include the lack of regular medical inspections in places of detention as an area requiring attention and action on the part of the state. Even then, however, the question remains open as to what needs to be done to ensure that medical inspections take place and that they take place in a manner that will produce the desired effects. A baseline, and often the easiest, change to put in place will be ensuring that such inspections are required by law, but this, while necessary, is by no means sufficient. Other factors, such as the lack of resources to pay medical officers, medical officers not being available in certain districts, doctors not having training to perform these functions, and the absence of monitoring to ensure that medical officers turn up, may all present practical impediments to realizing the desired effect. The important point here is that identifying the end-states that need to be achieved by way of institutional reform is not the same as operationalizing institutional reform. Monitoring bodies are likely to be able to make a significant contribution to the former task, and may make some contribution to the latter, but this will to a significant extent remain a task to be fulfilled, and one that presents considerable challenges, particularly in contexts of weak, fragmented, and pathological institutions. I will return to these issues in the next chapter. (iii) Accusatory Monitoring In part because so much rests on the willingness and capacity of state authorities to act on the advice of non-accusatory monitoring bodies, the very confidentiality that some saw as decisive to this strategy’s effectiveness has been viewed by others as its greatest weakness. This type of concern was already evident in criticisms of the ICRC’s public silence during the Shoah.65 Unsurprisingly, critics cast doubt on the appropriateness of the assumption that once they know that torture is taking place, authorities will take the required action to ensure that the preconditions of torture are 65

Jean-Claude Favez, The Red Cross and the Holocaust (Cambridge: Cambridge University Press, 1999).

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removed, or more accurately that if they know that an external agency knows that torture is occurring (albeit without telling), they will act to stop it. The underlying argument here is that if torture is occurring in places of detention, we would be naive to assume that state authorities higher up the chain can be trusted to bring about changes to stop it because they are probably responsible, complicit, or otherwise positively disposed to the use of torture. At worst, this type of insider arrangement would amount to a type of complicity with, or even enabler of, inaction on the part of monitoring authorities and those sponsoring them. The alternative, which was supposed to ensure that no such insider arrangement was possible, and that authorities could not get away with the pretense of a friendly agreement, was a form of accusatory monitoring that Tomasevski called “expose and oppose”66 but that today we know as “naming and shaming.” It is this approach that we see practiced today by some of the most prominent international human rights NGOs such as Amnesty International and Human Rights Watch as well as by many more local NGOs that work at the country level and cooperatively with the large internationals.67 The approach combines two types of actions: collecting and then documenting accurate information about torture, and then mobilizing public opinion. In this case, the information collection process must take place without the privileged (albeit perhaps sanitized) access that states will (or may) afford non-accusatory monitors. The capacity to collect data has been critical to getting this approach off the ground, and accurate, detailed information that can withstand scrutiny and the denial that can be anticipated when states are accused of torture is critical, as Amnesty learned when its reports on torture by the Greek junta in the early 1970s were attacked for being inaccurate.68 In this regard, even the bestresourced international human rights organizations must heavily rely on 66

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Katerina Tomasevski, “Foreign Policy and Torture,” in An End to Torture: Strategies for Its Eradication, edited by Bertil Dune´r (New York: St. Martin’s Press, 1998), 197. Amnesty’s first international campaign against torture, commencing in 1973, collected accurate accounts of torture, published annual audits of torture worldwide, and combined this with media work, government lobbying, and international activism. See Ann Marie Clark, Diplomacy of Conscience: Amnesty International and Changing Human Rights Norms (Princeton, NJ: Princeton University Press, 2010). On the work of India’s Asian Centre for Human Rights (ACHR) using similar campaigns pioneered on the Amnesty model, see Suhas Chakma, “Lessons Learned from the ACHR’s National Campaign for the Prevention of Torture in India,” Essex Human Rights Review (2014), http://projects.essex.ac.uk/ehrr/V6 N2/Chakma.pdf. See Barbara Keys, “Anti-Torture Politics: Amnesty International, the Greek Junta, and the Origins of the Human Rights ‘Boom’ in the United States,” in The Human Rights Revolution: An International History, edited by Akira Iriya, Petra Goedde, and William Hitchcock (New York: Oxford University Press, 2012).

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local human rights defenders whose continuous proximity and local networks afford them far greater access to information. What is most critical for the effectiveness of naming and shaming as a mechanism for bringing about change, though, is what this information does. In this respect, the dimensions of this approach that are most critical to its success concern its capacity to raise awareness and active concern among the relevant publics, and then the work of translating civil society outrage into concrete and effective changes to law, policy, and practice. In certain respects, this approach has its roots in classical theories about the importance and role of freedom of information and freedom of the press in democratic contexts, with the underlying notion being that people need to know what is actually happening and the actions that the state is committing or authorizing, and with this information in hand, to demand that governments make changes that are reflective of their will.69 In fact, although I have classified monitoring, including both nonaccusatory and accusatory monitoring, as falling within the second school of approaches, in certain respects, accusatory monitoring would be better placed under the first school. That is, non-accusatory monitoring involves working with relevant states’ authorities to alter the preconditions that create risks of torture occurring, particularly the conditions of detention, but also other conditions such as rules of evidence. By contrast, what accusatory monitoring, or naming and shaming seeks to do is to provide states with the motivation to make the changes that will bring about the end of torture, but with no special allegiance to the view that those changes concern attending to the institutional preconditions that create risks of torture occurring. Indeed, as I will discuss in Chapter 5, such campaigns are often aimed at pressing for the prosecution of perpetrators, or in terms of the framework I am using here, for implementing the laws that criminalize torture. In this sense, in many cases, accusatory monitoring would be more accurately classified as a form of tertiary prevention than, as is the case with non-accusatory monitoring, a form of primary prevention.

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Freedom of information has thus been central both to democratic theory (Robert A Dahl, On Democracy [New Haven, CT: Yale University Press, 2015], 97) and the modern human rights framework, as articulated by the UN General Assembly during its first session in 1946, where it resolved that “Freedom of information is a fundamental human right and the touchstone of all freedoms to which the United Nations is consecrated” (Resolution 59(1)). It is also this centrality of freedom of information to the work of human rights NGOs that explains the extreme repression of the free press in countries such as Sri Lanka. See Freedom House, Sri Lanka: Freedom of the Press, 2016, https://freedomhouse.org/report/freedom-press /2016/sri-lanka.

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As with the other approaches, one can discern a number of Theories of Change at work here, but the central one concerns the work that exposure of violations can do in getting states to change their behaviors, or perhaps more accurately, getting those in decision-making positions to bring about changes in law and policy that will lead to behavioral change. At work here is a type of economic analysis – the notion that exposure places states at risk of incurring certain costs: at the domestic level the loss of popular support, and at the international level the withdrawal of aid, trade, military support, or reputation. States may discontinue torture to avoid incurring those costs, depending on how high they are, what benefits they reap from continuing torture, and what costs they would incur in seeking to prevent it. Like non-accusatory monitoring, this strategy is relatively silent on the question of what states needs to do to bring about the cessation of torture, with this dimension of change again being something of a black box, filled by little more than a general assumption that state action is a matter of political will. Given how torture has been understood, the idea that shaming political leaders will result in their making the decisions required to prevent torture makes intuitive sense. Torture is (by definition) conducted by state agents, and, as such, it would seem to follow that state authorities must have a correlative capacity to stop torture. One sees a clear contrast between this case and, say, the case of domestic violence, where even as advocates insist that state inaction at best leaves the violation unregulated and at worst exacerbates it, there is still a recognition that in order to prevent domestic violence the state needs to take a complex set of actions beyond its own institutional structure.70 In the domestic violence case, the state needs to alter the behaviors of individuals who are not themselves part of the state’s own apparatus, and so effective prevention will require both the will and action of the state, and effective strategies for getting private individuals to act differently. Nevertheless, the case of torture may not be so different as it may seem if one tells a story that portrays the state as a unitary and internally integrated entity, and thus both perpetrator and potential preventer. Were the structure of authority a simple verticalistic one, in which political leaders control the behaviors of security personnel, determining whether they use torture or not, the line between getting political leaders on board and stopping torture would be relatively straight. If, however, one understands torture as emerging from a more complex interaction between different institutions and actors, 70

On state responsibility for domestic violence as a human rights issue and the array of roles that the state might play, see Dorothy Q Thomas and Michele E Beasley, “Domestic Violence as a Human Rights Issue,” Human Rights Quarterly 15, no. 1 (1993): 56–60.

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including some who are not directly within the control of executive authorities, matters are unlikely to be so simple.71 In this regard, challenging the fantasy of a monolithic state and then interrogating the internal structure of the state will be important in working out the internal connections and disconnections and specific sites of power where influence needs to be brought.72 (iv) Strategies Focusing on Practical Measures Two documents that came out of key organizations that have been consistently working in this space, Delaplace and Pollard’s (of the APT) “Torture Prevention in Practice” and Amnesty’s Combatting Torture, provide an insight into the increasing recognition that at the heart of effective prevention must lie practical measures to address the facilitating conditions for torture.73 Both emphasize preventative measures such as access to legal counsel, access to family, medical attention, and judicial assessment for all detainees, all ways of seeking to establish detention practices that will guard against or reduce the opportunities for torture. Nowak similarly emphasizes certain basic rights, the protection of which is critical to the prevention of torture: no arbitrary or preventative detention; access to family, a lawyer, and medical attention; prompt remand before a judge; a register of all detainees; and the recording of interviews and non-admissibility of evidence obtained under illtreatment.74 In this regard, we can see a certain convergence between torture prevention approaches and more comprehensive programs to bring about reform, modernization, or professionalization across the criminal justice system, and even more broadly programs aimed at “good governance.” Once the causal factors associated with torture are expanded to include factors such as the pay, 71

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One way of theorizing this is in terms of nodal governance, where the state becomes one node among others. My approach differs slightly insofar as I am suggesting that lines of authority between agencies operating under the guise of the state cannot be imagined in vertical or simple hierarchical terms. See Clifford Shearing and Jennifer Wood, “Nodal Governance, Democracy, and the New ‘Denizens,’” Journal of Law and Society 30, no. 3 (2003). Due to the tendency to see torture as the outcome of higher-order commands, there has been little attention to the dynamics of sub-state organization and sub-state authority. By contrast, in the area of education for example, significant attention has been paid to how centralized policy is mediated by local authorities. See James P Spillane, “State Policy and the Non-Monolithic Nature of the Local School District: Organizational and Professional Considerations,” American Educational Research Journal 35, no. 1 (1998). Delaplace and Pollard, “Torture Prevention in Practice”; Amnesty International, Combatting Torture: A Manual for Action (Oxford: Amnesty International, 2003). Nowak, “On the Prevention of Torture,” 250–51.

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social status, and working conditions of security sector personnel, training and technical support, the shallow roots of democracy, weak professional judgment, corruption, and intimidation, and the range of institutional conditions already noted, one can no longer conceive of effective prevention narrowly.75 A number of important players in the field, including the Special Rapporteur on Torture, the World Organization Against Torture, and, in the region relevant for the countries considered in this book, the Asian Human Rights Commission, have recognized that one cannot explain or prevent torture without also having an eye to a broader set of factors, and in fact have written reports embedding torture not just in dysfunctional criminal justice systems, but also in the context of broader socioeconomic and political pathologies.76 Once we embrace this broader structural picture, the business of preventing torture starts to look a great deal more complicated than passing laws or shaming leaders into “taking action” as if such action involved no more than the application of will to achieve a technical fix. Certainly the will of the political leadership is a necessary condition for preventing torture, and its absence will undermine any complementary efforts; but it is far from sufficient. At the same time, this type of systemic analysis indicates that prevention needs to be recast so that it involves not only the elimination of those factors that cause or create risks of torture, but also the development of alternative structures and processes that can achieve the core objectives of security and law enforcement agencies without resort to torture or ill-treatment. States and security forces may be willing to engage with the idea of stopping torture, but they will not forsake the achievement of their basic functions, and so long as they identify torture as the only available means for achieving their ends, they will continue to use it. This is not to say that the only reason that they use an illegitimate form of treatment – torture – is because this is the only way that they believe they can achieve legitimate ends (identifying criminals, gaining information about crimes); but undoubtedly such instrumentalist reasons are doing some work to keep torture in place in certain contexts. It is in this regard that we have also seen the emergence of a school of approaches that seek to

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One sees this expansive understanding in Evans and Morgan, “Torture: Prevention or Punishment?”, 25–26. As Special Rapporteur Nigel Rodley stated, ‘The overwhelming majority of those subjected to torture and ill-treatment are . . . from the lowest strata of society.’ UN Doc. A/55/290, para. 35 (August 2000). See also Thomas E McCarthy, ed. Attacking the Root Causes of Torture Poverty, Inequality and Violence (Geneva: World Organisation Against Torture, 2006); Basil Fernando, “Why the Asian Alliance against Torture and Ill Treatment,” Article 2 10, no. 3 (2011).

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prevent torture not by threatening or inflicting punishment, but by providing security personnel with practical skills that constitute alternative ways of doing their jobs. Perhaps the most common method within this type of approach is providing skills in noncoercive methods for interviewing suspects, originally drawing principally on the pioneering work of the US psychologists Fred Inbau and John Reid,77 and more recently on the “PEACE method” developed in the United Kingdom.78 Indeed, in 2009 and in the wake of the revelations about US torture in the war against terror, President Obama established the HighValue Detainee Interrogation Group (HIG) to be run by the FBI in cooperation with the CIA and Department of Defense, where intelligence experts were to research, develop, and then utilize ethical and effective investigation techniques. Again, insofar as the extraction of information is just one of the reasons that torture is used, and indeed, torture is used for a range of reasons that have nothing to do with the officially sanctioned objectives of the organization (intimidation, destroying individuals and communities, punishing people who belong to reviled groups, taking revenge), such approaches will have a limited reach. Nevertheless, they point to a more general principle that understanding the work that security personnel are required to do, and offering real, reliable, practical alternatives to their using torture to carry out those functions (that is, showing them how to do their job better) may be an effective way of preventing (some) torture. This principle is also evident in some of the common approaches taken to providing human rights training to security organizations, where, as part of building a set of justifications for not using torture, trainers are encouraged to enter into a discussion with trainees about the utility, or lack thereof, of torture. This includes discussing the unreliability of information obtained under torture and the deleterious effect that using torture can have on policing, insofar as it undermines community trust in security personnel and so cuts police off from an important source of information and crime prevention.79 In a similar vein, one of the significant and relatively novel voices we have seen in the torture prevention movement in the 77

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Fred Inbau, John Reid, and Joseph Buckley, Criminal Interrogation and Confessions (Burlington, MA: Jones & Bartlett Publishers, 2011). For an example of this approach, see Weidong Chen and Taru Spronken, eds. Three Approaches to Combatting Torture in China (Cambridge, Antwerp, Portland: Insentia, 2012). For example, Ethical Investigation: A Practical Guide for Police Officers, developed under the auspices of the UK Foreign and Commonwealth Office, sets out thirteen reasons why police should not use torture on suspects, ranging from the deontological (“Persons in police custody are in effect defenseless and the abuse of defenseless persons is contrary to all recognised moral or ethical codes of conduct”), to the self-protective (“It is increasingly common for those who

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wake of the revelations of US torture has come from former military personnel, sometimes working collaboratively with academic researchers, who are using their authority to argue that intelligence obtained under torture is rarely useful and often highly inaccurate.80 (v) Human Rights Education and Training This then points to a final prevalent approach to the prevention of torture that falls within neither the first school nor the second (in its non-accusatory or accusatory guises): human rights training and education. The principal targets for human rights or anti-torture training have been security sector personnel themselves, although training has also been seen as an important means for ensuring that others involved in the criminal justice system, including judges, lawyers, and medical professionals, are aware of and sensitized to the norms and laws concerning torture. In terms of the inventory of primary, secondary, and tertiary approaches to prevention discussed at the beginning of this chapter, insofar as they are identified as potential perpetrators, education and training for security sector personnel is a form of secondary prevention. When targeted at other personnel within the criminal justice system, it may be a form of primary prevention, insofar as it seeks to prevent torture occurring in the first place, or tertiary, insofar as it seeks to facilitate the punishment of perpetrators. Training for security sector personnel, explicitly set out in the UNCAT (Article 10.1), has been widely used as a prevention approach and, indeed, in recent years, there has been a tremendous growth in the field of human rights education. Reiterating the affirmation of the importance of human rights education articulated first in the Vienna Declaration and Programme of Action (1993; Section 1, para. 33), then in the proclamation of the United

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abuse human rights to be investigated, prosecuted and punished for their misdeeds not only by their own courts, but also by international tribunals”), to the highly instrumental (“Torture is an ineffective investigative tool. There is incontrovertible evidence to show that confessions and admissions made under duress are likely to be false or unreliable”). Bob Denmark, Ethical Investigation: A Practical Guide for Police Officers (London: UK Foreign and Commonwealth Office, 2005), 39–42. See, for example, Human Rights First, Statement of National Security, Intelligence, and Interrogation Professionals, news release, October 1, 2014, www.humanrightsfirst.org/resourc e/statement-national-security-intelligence-and-interrogation-professionals. For an example of collaborative research involving intelligence professionals and academic researchers, see “Information Gathering in Law Enforcement and Intelligence Settings: Advancing Theory and Practice,” Special issue, Applied Cognitive Psychology 28, no. 6, 2014.

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Nations Decade for Human Rights Education (1995–2004),81 and then again by the second phase of the World Programme for Human Rights Education (2010–2014),82 on December 19, 2013 the General Assembly adopted the Declaration on Human Rights Education and Training. This Declaration explicitly specified the need for human rights training and education for the military and police.83 Beyond these formal international institutional developments, over the past decade we have seen the rapid proliferation of NGOs working on human rights education and training, developing resources and advocating for the expansion of educational efforts, a subset of which have been specifically devoted to the training of security personnel.84 Consistent with the approach spelled out in the UN World Programme for Human Rights Education, training for security personnel is understood as working by bringing about individual change along three dimensions: knowledge, attitudes, and skills.85 This is a clear instance of secondary prevention insofar as it is seeking to bring about changes in those likely to commit violations (or in some cases those who could facilitate or support violations). The ToC at work here would seem to hold that the problematic knowledge, attitudes, and skills of personnel are causes of torture (although certainly not the only ones). That is, security personnel commit torture in part because they do not know about human rights norms and laws or do not know that torture is an absolute wrong and an illegal act, and/or because they have attitudes that are conducive to torture or lack attitudes that strongly condemn torture, and/or because they lack skills that would allow them to do their jobs in a way that does not involve torture. Correlatively, insofar as it provides security personnel with knowledge about human rights and anti-torture norms and laws, and it shifts their attitudes so that they will embrace these norms and condemn torture, and it provides them with relevant skills so as to enable them to act consistently with these norms, training is understood as an effective way of blocking these causes and transforming subjects. This at least is the theory, but 81 82

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General Assembly Resolution 49/184 of December 23, 1994. Established pursuant to Human Rights Council resolution 12/4 (October 1, 2009). Section D of the draft plan of action for the second phase (A/HRC/15/28, July 27 2010) explicitly concerns “Action promoting human rights training for civil servants, law enforcement officials and the military.” A/RES/66/137, see in particular Article 11. Human Rights Education Associates is an international organization indicative of the specialist educational organizations, but most major international NGOs such as Amnesty International have dedicated education sections. United Nations, World Programme for Human Rights Education, Second Phase: Plan of Action (New York and Geneva: United Nations, 2012).

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as I will discuss in Chapter 3, the practice of training rarely conforms with this ideal model of individual transformation. Within this category of prevention through education we should, finally, include public education programs. Rather than focusing in on changing the knowledge and attitudes of those who might directly be responsible for perpetrating or resisting torture, here the aim is to effect a broader social transformation or enculturation so that the general population advocates for the respect of human rights and condemns torture. Large-scale anti-torture campaigns by organizations like Amnesty seek not only to inform publics about the prevalence of torture, but also to provide a moral education designed to have those who might take little or no interest in such matters wake up to the true horror of torture and thereby ignite in them the outrage that would catalyze action for reform, consistent with the naming and shaming model. In this regard, Nowak draws his reflections on the limited effectiveness of prevention approaches to a close with the observation that without a broader culture of human rights in which the basic dignity of all persons is held sacrosanct, irrespective of their status (as, say, hard-core criminals or reviled minorities), we will always fall short of realizing the potential of these other strategies. 4 CONCLUDING THOUGHTS

Since the early 1980s, when torture became a major concern for human rights advocates, various strategic approaches to preventing torture have been developed and tried out. They range from those that focus on developing standards and international agreements condemning torture, through to those that seek to pressure states to punish perpetrators, those that work cooperatively with states to try to bring about institutional reforms that will reduce the risks of torture, those that focus on the practicalities of institutional reform, and those that try to ensure that security sector personnel and others within the criminal justice system will themselves oppose torture. These approaches span the full spectrum of primary, secondary, and tertiary approaches to prevention, although the emphasis that has been placed on criminalizing torture and punishing perpetrators is indicative of a leaning toward tertiary prevention. At the same time, most prevention approaches have relied heavily on law, not only for the purposes of punishing perpetrators, but also as a steering mechanism for bringing about other types of institutional reform directed toward primary prevention. Indeed, perhaps because the institutions that sustain and perpetuate torture are both complex and beyond the reach of

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anti-torture advocates, prevention strategies seem to pay little attention to the mechanics of institutional reform, beyond what legal reform can bring about. Largely assuming that political will, if it can be influenced, or the law, if it can be reformed, will be the levers for bringing about institutional changes, this realm of reform remains something of a black box. I turn now, in Chapter 2, from the descriptive question (what have we been doing?) and the analytic question (why have we been doing these things?) to the evaluative question (what has what we have been doing achieved?).

Vignette 2

Aastha and I have been traveling for several days in the eastern part of Nepal, visiting police stations in small towns, speaking with senior police officers, and trying to get a sense of what day-to-day policing practice looks like. The nights are nearly as hot as the days, and late at night, listening to the mosquitoes just on the other side of the mosquito net over my bed, after the official work is over, my mind and body turn to what it must be like for the people detained in the tiny, windowless, and crowded lockups we’d visited a few hours earlier. Aastha, my Nepali colleague and co-researcher, has been here before. She knows the place and some of the people, and it is her language and know-how that make it possible for us to get around. This morning we drive a couple of hours from the place we spent the night to a large compound of the Armed Police Force (APF), a paramilitary organization that was specifically created in 2001 during the civil or “People’s War” of 1996–2006. It’s never been quite clear to me why, almost ten years later, the APF continues to exist alongside a police force and a military, but today we are here to talk about how they go about training current and future personnel. So I need to bracket my larger queries about its raison d’eˆtre. The compound is large and lush, and we are driven along a very long drive (past security) to a building where, as is usually the case, we are met by a relatively junior officer stationed ready to take us to see his superiors (all of whom are “he’s”). I’ve spent time with this senior officer at a couple of workshops we ran, and Aastha knows him quite well, having spent many hours discussing how APF personnel are trained and what needs to change to ensure better human rights safeguards in the force. Now we are sitting in quite a large hall, and the senior officer is explaining that what he wants to do is to improve the human rights training that APF personnel receive, so that they will not violate human rights. They need to know, he is telling us, that if you use torture on people in custody then you will 67

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be punished. He emphasizes the importance of their knowing about the illegality of torture and the international legal standards, but as I am listening to him, Geneva seems as remote as I can imagine. No criminal proceedings have been successfully taken against a single member of the APF, nor for that matter any member of any Nepali security organization, despite extensive documentation of the use of torture. I’m unsure whether his conviction is authentically held, or if it is for my benefit. I imagine he imagines that this is what I would want to hear, but our combined imaginings no doubt leave a lot to be desired in terms of their accuracy. He also tells me that he wants the training to be experiential, because he knows that many of the trainees find the training they are currently receiving really boring. No doubt he has read over the material we have sent about the value of engaged pedagogies. The trainees feel that what they hear has nothing to do with their actual lives, he tells us: something I have heard – and seen – many times before. But then we come to speak about how many people need to be trained (according to the official quotas), who is available to conduct the training, and the resources he has available, and it becomes pretty clear that formulaic, content-heavy lectures in front of hundreds of men (they are all men) are likely to remain standard operating procedure. It’s not that he can’t see what is wrong with this way of doing things, but there are numbers and buildings and available skill sets and a variety of “how we do things here” that can’t even be spoken about. So, we speak about what we can, but not about what sometimes seems to me to be the theatrical set that continues to frame us.

2 How Effective Has Torture Prevention Been?

1 THE CHALLENGE OF EVALUATION

In the previous chapter, I set out the principal approaches that have been adopted to prevent torture since the mid-1970s. With this inventory in hand, we can now turn to what we know about the effectiveness of these different approaches. Due to the patchiness of robust evaluation of both the broad approaches (for example, naming and shaming or criminalization) and discrete prevention projects, some creativity is required. Where they are available, I look at the social scientific studies that have tried to measure the effectiveness of torture prevention projects. Where these are not available, I look to studies in cognate or related areas that have sought to measure the effect of human rights interventions on state violence or bodily integrity, within which torture is a subcategory. Often, though, we do not have even this level of evidence; where this is the case, I consider what we might be justified in presuming about the probable effectiveness of a particular approach, either by looking at studies on the effect of similar strategies on other types of violations, or by considering what would have to be true for the approach to be effective.1 From this exposition and analysis of the torture prevention field, I then identify some puzzles and gaps to which I turn in the following two chapters. Before moving on to look at what we know about effectiveness, I wish to briefly return to the prevention logic discussed in the previous chapter, specifically the ToC, and to think through how the different strategies and approaches that are evaluated for effectiveness map onto this logical structure. 1

I am indebted to Darius Rejali’s expert report prepared for the Enhancing Human Rights Project for this methodological approach, as well as for some of the material included in this chapter. See Darius Rejali, Torture Prevention: A Literature Review, Expert report prepared for the Enhancing Human Rights Project (Sydney: University of Sydney, 2013).

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Recall, in the previous chapter, I adopted as a broad framework Manfred Nowak’s classificatory system of two principal schools of torture prevention, within which I suggested sub-schools (non-accusatory and accusatory monitoring), and besides which I added some others (for example, security sector reform to address the preconditions of detention and human rights training). In each case, I tried to work out the ToC that underpinned the approach, and in so doing drew a distinction between how the approach understood the cause of the problem that needed to be addressed, and how it understood the strategy that needed to be adopted to address the cause. One form of language I suggested could be used to describe this logic was talking about what needs to be changed (to solve the problem) and how to change it. Thus, for example, following Nowak, I argued that the principal cause that the first school was seeking to address was impunity; and the strategy it adopted to address this cause was getting nation states to ratify international treaties, so that they would pass domestic laws criminalizing torture, punish perpetrators, and so on. Ending impunity (or punishing perpetrators) is, then, the what, and getting countries to ratify international human rights law is the how, and they occupy distinctive positions within the overall prevention logic. When one lays matters out this way, the distinction that I am drawing probably seems fairly obvious. The problem is that if one looks at much of what people have to say about prevention, and more specifically at the literature on what is effective in preventing torture, one finds that these two components of the prevention logic are frequently conflated. Thus, under a general rubric of assessing prevention measures or approaches, sometimes what is being assessed is whether the cause of the problem has been correctly identified (is impunity a cause of torture?), and at other times what is being assessed is whether the particular strategy that has been adopted to affect or eliminate the cause does so effectively (does getting nation states to ratify treaties lead to their punishing perpetrators?). Both the “what” and the “how” questions are important, but they are discrete and the distinction needs to be retained if we are to work out what we are getting right or where we are going wrong. The recent highly comprehensive evaluation of torture prevention strategies that Carver and Handley conducted under the auspices of the APT well illustrates my point. By way of brief background, Carver and Handley sought to work out what was effective for prevention by analyzing the impact that different types of preventative measures had on the incidence of torture. Based on legal obligations set out in relevant international treaties, they identified sixty-six prevention measures or factors, and these constituted the independent

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variables for their study.2 They then scored these variables in sixteen countries over an eighteen-year period (1995–2013), and, using a specially created metric to measure the dependent variable (the occurrence of torture), while controlling for variables that have been identified as macro factors influencing the observance of human rights (democracy, growth, GDP per capita, and population), they conducted a comprehensive multivariate analysis to assess how the different factors contributed to the prevention of torture. They accompanied this quantitative analysis with qualitative studies in each of the sixteen countries. To interpret and discuss their findings, they classified the sixty-six independent variables into four groups: detention, prosecution, complaints, and monitoring. The conclusions that they draw, particularly about the centrality of conditions of detention, are extremely important for human rights activists and I will draw on them myself in making the arguments of this book. But for the purposes of this discussion, what I am interested in is how they grouped the different variables. Consider the “detention” grouping and the “monitoring” grouping. “Detention” includes factors such as family notification, medical examinations, and recording interrogations and, in many respects, resembles what in the previous chapter I discussed under the rubric of strategies to address the preconditions of torture.3 Monitoring (which is substantively equivalent to what I called “non-accusatory monitoring”) includes factors such as making unannounced visits, and immunity for monitoring-related activities. It is no doubt correct to say that detention and monitoring can both be described as prevention strategies, but, if we think about them within the logic I have been laying out, we can see that they belong to different parts of that prevention logic. That is, the conditions of detention belong in the first half of the ToC, because here what is at issue is how certain problems in detention conditions cause or contribute to the use of torture. By contrast, monitoring belongs in the second half of the prevention logic, because monitoring places of detention is posited as a way that human rights protectors can bring about changes to the conditions of detention. If one is not attentive to the different parts of the logic, one could easily make the mistake of simply saying that the failure to monitor places of detention is one of the causes of torture, and so belongs in the first half of the logic, but when one does so, one is allowing

2 3

Carver and Handley, Does Torture Prevention Work?, 34ff. Note that for each of the groupings, Carver and Handley divide the variables into law and practice. For example, with respect to detention, there are separate variables for the illegality of unofficial detention and the practice of unofficial detention. I return to this in Section 5.

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the second part to drop off altogether. Non-accusatory monitoring is best understood as a strategy that can be used to improve conditions of detention.4 Given that all sixty-six variables are drawn directly from international instruments that set out what states need to do to prevent torture, one might ask why I am insisting upon this distinction: they all contribute in some way to the prevention of torture. But, when what we are interested in is evaluating effectiveness, we need to be clear about what it is that we are actually finding out. Are we finding out that we have correctly identified what needs to be achieved? Studies that examine or test whether the introduction of a particular practice (for example, punishing perpetrators or eliminating incommunicado detention) leads to reductions in torture will help us to answer this question. Or, are we finding out about how to achieve this? Studies that examine or test whether particular types of processes or strategies (say, ratification of international law or monitoring) lead to the adoption of the identified practice (punishing perpetrators, altered conditions of detention) will answer how this question. Again, the two questions and objects of analysis are importantly different, and one needs to have answers to both, without confusing them. Another example from the literature similarly illustrates the problem. In the previous chapter, I discussed Delaplace and Pollard’s “Torture Prevention in Practice” and Amnesty’s Combatting Torture, and noted that both advocate measures such as detainees’ access to legal counsel, access to family, medical attention, and judicial assessment, as those that are most effective in preventing torture (all of which incidentally involve detention practices).5 I also noted that Nowak names similar measures as critical to prevention: no arbitrary or preventative detention, access to family, a lawyer, and medical attention, prompt remand before a judge, a register of all detainees, the recording of interviews, and non-admissibility of evidence obtained under ill-treatment.6 In a similar vein, Darius Rejali suggests that we can surmise five basic rules for preventing torture: clear authority, clear rules, clear punishments, immediate medical inspection, and prompt remand before a judge.7 All of these assertions point to factors that belong in the first half of the ToC; they all tell us what results we need to produce if we are to prevent torture.

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5 6 7

Carver and Handley clearly recognize that this is the case, as indicated by their observation that “many improvements in detention safeguards . . . which definitely do reduce the risks of torture, originate in monitoring body reports.” Carver and Handley, Does Torture Prevention Work?, 97. See p. 60. See p. 60. See Darius Rejali, Expert Report in Suhail Najim Abdullah Al Shimari et al., v Caci International, Inc., et al., C.A. No. 08-cv-0827 GBL-JFA, see lines 1100–248.

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My point is certainly not to diminish the importance or overlook the necessity of working out what needs to be achieved. There can be no doubt that part of answering the question of how to prevent torture includes working out whether, if all of these specific practices are in place, torture will be prevented; but it still leaves open the question of how we achieve those practices or processes themselves. In other words, we still need to fill out the second half of the ToC. We still need to work out how, for example, in a context where police routinely detain people without a register, one would get them to keep a register. At the same time, the different schools or approaches discussed in Chapter 1 also operate at different scales. Some operate at the macro-political level. For example, leveraging the force of international law, the shame of exposure, or the prospect of bearing the costs of noncompliance are all ways of trying to motivate states to take action. Then there are strategies that work at a much more immediate or micro-level. For example, to achieve prompt remand before a judge one could adopt a range of strategies, including putting in place laws requiring prompt remand, the provision of sufficient resources to ensure the availability of local magistrates, providing conditions that will ensure judicial independence, establishing procedures in police stations for this process to take place as a matter of routine, and so on. The effectiveness of any of these strategies needs to be assessed, but a comprehensive assessment will require recognizing the level at which they work and what part of the problem they work on. Undoubtedly, all of this can get quite confusing, not least because depending on how one is thinking about the problem, a particular approach could seem to be either an objective or a strategy, and many can be both objectives and strategies within a larger prevention map. Nevertheless, if we neglect to make these distinctions, we are liable to think that it is sufficient either to identify the objective (the what) or to identify the strategy (the how). Both are necessary, but neither on its own is sufficient. Moreover, unless they are combined in the right way, we will not achieve our ultimate objective. On the one hand, the assumption that the identification of the objective is sufficient leaves us without a firm understanding of which practices will get us from where we are to where we need to be. On the other hand, the assumption that the existence of the strategy is equivalent to the achievement of the objective may lead to us continuing to adopt that strategy long past its having failed to do so. In this context, perhaps the most egregious example is the view that enacting laws requiring that a certain practice be adopted is tantamount to the adoption of the practice, something that, as I will discuss in this chapter, we now know not to be true. With this roadmap in hand, I turn now to what we know about the different objectives and strategies.

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2 EVALUATING THE FIRST SCHOOL: LAW, CRIMINALIZATION, AND IMPUNITY

Assessing the impact of criminalizing torture through the international legal regime, Manfred Nowak commented that even after states had made international agreements promising to bring perpetrators to justice, he knew of “almost no cases in which perpetrators of such crimes have been brought to justice.”8 On face value, this would seem to imply that because states have actually punished few people for committing torture, energies directed at establishing international and domestic criminal legal regimes have been misdirected. But this is surely too simple a conclusion, not least because, as discussed in Chapter 1, the impact of law also occurs through its expressive function. Thus, states establishing the illegality of torture may have preventative effects beyond the direct deterrent effects of actual punishment. Before assessing this claim, however, let’s take a systematic look at what we know about the impact of international human rights law. Here we might commence with an analysis of the impact of treaty compliance on state behavior, a topic that, before researchers began to gather empirical data, was subject to divergent theoretical analyses by scholars of international law and scholars of international relations. In one of the first empirical studies on the impact of treaty ratification, Oona Hathaway usefully reminds us of the extraordinary faith that the former group seemed to place in international law, quoting one of the most influential early international human rights scholars, Louis Henkin, saying that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”9 It is difficult to imagine even the most sanguine international law scholar making a similar statement today, almost forty years later. By contrast, international relations scholars, particularly those working in the realist tradition, tended to cast international human rights law as largely epiphenomenal and were skeptical about its independent effect on state behavior.10 Since around 2008, interaction between the two has resulted in the positions on both sides becoming more complex. Nevertheless, the influence of the former remains apparent in the assumptions underlying the first school. Had realist international relations scholars been the figures leading 8 9

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Nowak, “On the Prevention of Torture,” 249. Louis Henkin, How Nations Behave: Law and Foreign Policy (New York, Columbia University Press, 1979), 47, cited in Oona A Hathaway, “Do Human Rights Treaties Make a Difference?,” Yale Law Journal 111, no. 8 (2002). Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge: Cambridge University Press, 1999).

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advocacy campaigns, it is doubtful we would have seen such priority given to the promulgation of international human rights law. When scholars came to try to track the empirical relationship between ratifying human rights treaties and the commission of violations, the early statistical studies concluded that ratification does not, in itself, influence states’ use of torture.11 More accurately, they found that where certain domestic conditions are in place, ratification can make a positive difference; but in other cases, it actually seemed to make matters worse, and sometimes it made no difference at all. Subsequent studies that sought to analyze the data in a more variegated manner suggested that the impact of treaty ratification on reducing torture depends on a number of factors, including regime type,12 the level of power sharing in the country,13 and the effectiveness of the state’s judiciary.14 In the most comprehensive study of intervening variables, Beth Simmons concludes that committing to anti-torture treaties plays an important role in “polities where complementary channels of influence – public demands, foreign pressures, powerful and well-respected courts – come together to demand an end to torture.”15 In other words, what effect treaty ratification has depends on local conditions and the capacity of local judiciaries and civil society organizations to draw on treaty commitments as part of their domestic legal and political mobilization against torture. From the point of view of our question, which is whether this first school has been effective, we are on safest ground to conclude that the promulgation and ratification of international law has been a contributing factor assisting in the fight against impunity where the local conditions are right, or where it is conjoined with other, more local forms of legal and nonlegal advocacy. Getting states to agree

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Hathaway, “Do Human Rights Treaties Make a Difference?”; Emilie M Hafner-Burton and Kiyoteru Tsutsui, “Human Rights in a Globalizing World: The Paradox of Empty Promises 1,” American Journal of Sociology 110, no. 5 (2005). Oona A Hathaway, “The Promise and Limits of the International Law of Torture,” in Torture: A Collection, edited by Sanford Levison (New York: Oxford University Press, 2004); Beth A Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (New York: Cambridge University Press, 2009). James Raymond Vreeland, “Political Institutions and Human Rights: Why Dictatorships Enter into the United Nations Convention against Torture,” International Organization 62, no. 1 (2008). Emilia Justyna Powell and Jeffrey K Staton, “Domestic Judicial Institutions and Human Rights Treaty Violation,” International Studies Quarterly 53, no. 1 (2009). Simmons, Mobilizing for Human Rights. She concludes that UNCAT commitments are most effective in countries “with volatile and transitional experiences with public accountability” because in such cases people have “strong incentives to mobilize to implement the international ban in domestic law” (305).

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to condemn torture and even to pass domestic laws that criminalize it is, in itself, insufficient to overcome impunity.16 Beyond the rarefied atmosphere of abstract legal scholarship, this would hardly be surprising news, and not only for realists who question the impact of treaties not backed by sanctions, but also by criminologists who have emphasized the gap between formal laws and behavioral change among security personnel. For in this case, we are not simply talking about the relationship between an international legal regime and a state, but between an international legal regime, state law and policy, and the actual behavior of security sector organizations and personnel. Reviewing the impact of the UK Human Rights Act, a piece of law that is far less remote than international treaty agreements, Bullock and Johnston found that rather than being changed by the adoption of this law, police found ways of working around it. They interpret their findings against the background of criminological literature, arguing that “the relationship between law and policing (and, in particular, any attempt to use law as a top-down method for achieving change in police practice) must be understood within the context of organizational cultures in which the majority of police officers are ‘characteristically ambivalent’ to law (Dixon 2007: 24) and regard knowledge of law as less important than an ‘appreciation of local community norms’ (Fielding 1988: 52).”17 Indeed, they go further, quoting Ericson’s depiction of laws as “literally dead letters, dying as the ink dries on the paper on which they are published.”18 If we go back to the richer notion of impunity articulated earlier, the danger apparent here is that nominal passage of international or even domestic law criminalizing torture would only superficially challenge impunity, floating above a system that continues to tolerate, if not positively sanction torture. To the extent that this is the case, the expressive function of laws criminalizing torture will be muted, or drowned out by contrary messages about the acceptability of torture. This would still hypothetically leave in place law’s general deterrent function, but here again, the evidence indicates that what makes deterrence effective is the regularity or predictability of punishment. If punishment is rare and sporadic, any general deterrent effect will be

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Carver and Handley find a low negative correlation between treaty ratification and the incidence of torture. Carver and Handley, Does Torture Prevention Work?, 84. Bullock and Johnson, “The Impact of the Human Rights Act 1998 on Policing in England and Wales,” 632. References in original. Richard V Ericson, “Rules in Policing: Five Perspectives,” Theoretical Criminology 11, no. 3 (2007): 379.

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diminished.19 Thus, while we have good reason to believe that ending impunity could deter others from committing similar violations, and no reason to believe that torture would be exempt from this general principle, for this to be the case, potential perpetrators (including here not only the low-level personnel but all those who order, oversee, or in other ways positively sanction torture) need to be reasonably certain that their actions will result in their punishment. Again, this would not come as news to the many people working within this first school, who have recognized that more proximate procedures capable of holding states accountable for holding perpetrators accountable are necessary supplements to laws as remote as international treaties. In their analysis of the impact of different approaches to preventing torture, Carver and Handley survey a number of country-level studies that assert that the persistence of torture is due to the failure to punish perpetrators. Upon closer examination of the method adopted by those studies, however, they conclude that while they do show that torturers enjoy impunity, “none shows that impunity caused the continuation of torture (wholly or in part) rather than being evidence of insufficient official commitment.”20 Their own data, based on their comprehensive multivariable analysis, indicated that the existence, as distinct from the practical implementation of, domestic laws criminalizing torture had virtually no effect at all.21 Moreover, with respect to criminal prosecution of torture, they found that although there had been a steady increase across the period under examination in both the legal and the practical dimensions, the gap between them had steadily widened. In other words, practical changes increasingly lagged behind improvements in the legal regime. Thus, while they quite rightly insist that the existence of laws is a precondition for the practice of prosecution and punishment,22 which do have preventative effects, this latter finding in their study suggests that an overly formalistic approach to legal reform is deleterious for positive outcomes. To be clear, and in summary, they found that actual punishment of perpetrators does have a preventative effect, but that the first school, particularly where the emphasis is on legal reform, is not an effective means of ensuring punishment. Moreover, they found that the most frequently adopted strategies have been ones that favor or emphasize formalistic legal reform. 19

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Andrew Von Hirsch et al., Criminal Deterrence and Sentence Severity (Oxford: Hart Publishing, 1999); Daniel S Nagin and Greg Pogarsky, “Integrating Celerity, Impulsivity, and Extralegal Sanction Threats into a Model of General Deterrence: Theory and Evidence,” Criminology 39 (2001). Carver and Handley, Does Torture Prevention Work?, 22. Ibid., 82. Ibid., 52ff.

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As I described in the previous chapter, the UN (and similarly regional human rights regimes) has its own mechanisms designed to consolidate treaty compliance, in particular the Special Rapporteur on Torture and the Committee Against Torture.23 Reflecting on his work as Special Rapporteur, Manfred Nowak was certainly cautious in evaluating how effective he had been, concluding that “it was difficult to assess” whether his country missions had any “direct or sustainable effect on the eradication of torture and/or the improvement of the conditions of detention,” although he was confident in concluding that those visits were effective in raising awareness about the problem of torture and the country-specific problems.24 Nowak’s conclusions point to an obvious question: what processes or interventions will effectively address the expertly documented country-specific problems? In other words, once international norms concerning torture have been articulated, states have nominally affirmed them, and oversight mechanisms like the treaty committees and special procedures have been established and have undertaken their work in raising awareness about the gaps between promise and action, what then needs to happen? Between declaring that torture is an absolute crime, or that freedom from torture is a non-derogable right, and torture actually being treated as absolutely impermissible lies a vast expanse of practices and processes that would bring about the changes in practice to which Carver and Handley refer, and it is precisely these that we need to understand. In this regard, we might have something to learn from an instance of torture prevention that predates the era I have been discussing – the National Commission on Law Enforcement and Observance of the American Bar Association (better known as the Wickersham Commission) that took place in the United States in the 1930s.25 The Wickersham Commission was established against the backdrop of widespread brutal interrogation by police across the United States. In its extensive empirical research, it not only looked into the prevalence and types of torture that took place in cities and rural settings, but also tried to understand the factors that contributed to police refraining from torture at those sites (like Boston) where they seemed to do so.

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There is a study on the UNCAT that claims to measure the Committee’s impact, but in fact it examines whether (eight European) states complied with the Committee’s concluding observations. See Ronagh McQuigg, “How Effective Is the United Nations Committee against Torture?,” European Journal of International Law 22, no. 3 (2011). Manfred Nowak, “Fact-Finding on Torture and Ill-Treatment and Conditions of Detention,” Journal of Human Rights Practice 1, no. 1 (2009). On the findings and effect of the Commission see Rejali, Torture and Democracy, 69–74.

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The Commission’s findings, Rejali argues, afford the five basic rules for preventing torture noted in Section 1 (clear authority, clear rules, clear punishments, immediate medical inspection, and prompt remand before a judge).26 But it did not just specify what needs to be achieved, it also shed light on how to effectively achieve these objectives. Specifically, it found that what actually prevented impunity was the presence of internal authorities that made the rules explicit, demonstrated that they were meaningful within the institutions, and acted on them in an immediate and proximate manner. Moreover, these principles were most effective when they were not simply imposed by external agencies, but when they were embraced and taken up by the security organizations themselves. Reflecting on both the use and then the subsequent stamping out of torture in Abu Ghraib, Philip Zimbardo (of the famous Stanford prison experiment to be discussed in Chapter 3) points to the centrality of these same principles, first in their absence and then in their observance.27 The problem in Abu Ghraib, he argued, was a combination of absent or distant moral authority, unspecified and unclear rules, no punishment for infraction of rules, no regular medical inspection (or in this case medical inspectors who collaborated), no independent legal counsel, and no remand before a judge. To construct a complete analysis, one would of course need to include the role of senior members of the US administration in positively sanctioning the use of torture as well as the broader context of the war against terror, which established a permissive if not encouraging environment for torture, but Zimbardo’s point about the organizational conditions remains legitimate. One might see a resonance between this view (that the practices that will bring about prevention need to be embraced from the inside) and some of the research that has been conducted on the interface between international norms and laws and local practice. When anthropologically oriented scholars like Clifford Bob, Sally Engle Merry, and Shareen Hertel studied how local civil society actors took up the language of international human rights, what they found to be particularly important was these actors locating and adopting local normative frameworks and languages that resonated with the discourses of international law, but which had traction at the local level.28 What allowed

26

27

28

As I will discuss in Section 5, two of those rules, immediate medical inspection and prompt remand before a judge, also fall within what Carver and Handley classify as measures concerning the conditions of detention, and are among those that their data indicate are particularly efficacious. Philip Zimbardo, The Lucifer Effect: Understanding How Good People Turn Evil (New York: Random House, 2007), 440–42. Clifford Bob, The Marketing of Rebellion: Insurgents, Media, and International Activism (Cambridge: Cambridge University Press, 2005); Shareen Hertel, Unexpected Power:

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international laws to make a difference, then, was this translatablity, or what Merry calls vernacularization, a process through which they could be embedded in local understandings and practices.29 Without this “insider-out” uptake, it was unlikely that international human rights law would have an impact. Again, this general principle does not tell us how to bring about such vernacularization, especially where local normative frameworks might be in conflict with those of international human rights norms. Moreover, in most of the cases that these researchers were studying, the uptake was among actors who were (so to speak) on the same basic side as human rights, rather than actors and institutions who were the targets of human rights campaigns. Nevertheless, their analysis does point to the need to look closely at the existing processes, practices, and phenomenology of local actors so as to understand not only the message, but also the process whereby reception can occur. 3 MONITORING

What about monitoring? I begin with non-accusatory monitoring. Coming back to the prevention logic I referred to in Section 1, hypothetically, we could imagine that monitoring could occupy both parts of the ToC. That is, monitoring could directly prevent acts of torture; or, one could understand monitoring as a method for bringing about changes to other practices or processes that impede or facilitate torture. In the second case, monitoring works by altering the conditions that create risks of torture. If we consider the first, if monitoring bodies were present during the actual perpetration, one might imagine that torture would stop. But this would rarely, if ever be, the case. As I suggested in the previous chapter, monitoring may have a small direct effect insofar as the presence of witnesses may alter the self-consciousness and thus the behavior of security sector personnel beyond the narrow time frame of their physical presence. But for the most part, any impact that monitoring has is likely to be of the second type, where it serves as a means for altering the conditions that facilitate torture. In this regard, Evans and Morgan, who conducted comprehensive studies on the European Committee for the

29

Conflict and Change among Transnational Activists (Ithaca, NY: Cornell University Press, 2006); Merry, Human Rights and Gender Violence. The logic of these findings is consistent with logics that have been developed in analyzing effective framing in social movements. In this context, studies consistently indicate that the frames that have the most resonance for prospective social movement adherents, and thus are most effective in attracting and mobilizing them, are ones that draw on preexisting cultural narrations, myths, or inherent ideologies. For a survey, see Robert D Benford and David A Snow, “Framing Processes and Social Movements: An Overview and Assessment,” Annual Review of Sociology 26 (2000).

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Prevention of Torture (CPT), argue that the effectiveness of monitoring depends on the findings of monitoring bodies being taken up within more systematic and ongoing processes of policy negotiation and domestic political advocacy.30 A comprehensive evaluation of the effectiveness of non-accusatory monitoring, particularly when the process is entirely confidential, is, by definition, impossible. Nevertheless, in their global study of the CPT, Evans and Morgan find some evidence that monitoring on this cooperative model does seem to be effective – in some cases at least – in addressing treatment that is inhuman or degrading, such as poor prison conditions.31 A number of other studies have also looked at the effect of the CPT in more specific cases. An evaluation of the impact on conditions of detention for immigrants held in detention in Italy concluded that conditions “seemed to have improved” since the CPT visit.32 A study of the treatment of prisoners in Spain held under anti-terrorist legislation found that there had been no improvement despite multiple visits from the Committee Against Torture and the CPT.33 In their evaluation of the impact of monitoring, Carver and Handley look at both international and domestic monitors, and find mixed results. In assessing the actual operation of monitors in a range of political contexts, however, they do make several important observations. First, and linking back with my discussion about the relationship between monitoring and detention safeguards or conditions, they observe that in many cases, the improvements in detention safeguards (which do result in preventing torture) originate in monitoring reports.34 I will return to the effect of altering the safeguards and conditions of detention in Section 5. Second, and unsurprisingly, a number of their case studies, as well as their overall statistical analysis, indicate that what often impeded the effectiveness of monitors was their being prevented from conducting comprehensive and impromptu visits, and, most importantly, their being unable to operate without threats or sanctions being brought 30 31

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Evans and Morgan, Preventing Torture, 150. Evans and Morgan, Preventing Torture. Monitoring specifically for torture is also usefully located within a broader literature on the role of external bodies in prison oversight. On this see Michele Deitch, “Annotated Bibliography on Independent Prison Oversight,” Pace Law Review 30 (2009). Carmelo Danisi, “Preventing Torture and Controlling Irregular Immigration,” Essex Human Rights Review 6 (2009). Benito Morentin, Luis F Callado, and M Itxaso Idoyaga, “A Follow up Study of Allegations of Ill-Treatment/Torture in Incommunicado Detainees in Spain. Failure of International Preventive Mechanisms,” Torture: Quarterly Journal on Rehabilitation of Torture Victims and Prevention of Torture 18, no. 2 (2007). Carver and Handley, Does Torture Prevention Work?, 97.

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against them or the detainees who spoke with them. As discussed in the previous chapter, the OPCAT seeks to avoid these shortcomings through specifically requiring that access to places of detention not be impeded and that both monitors and those with whom they speak be fully protected from any retaliation. I turn now to accusatory monitoring or naming and shaming. As I discussed in the previous chapter, the logic at work here suggests that exposing torture will (or can) provoke outrage among publics, and that these publics will then act in ways that will force political leaders to bring about changes in law, policy, and practice. The ToC thus rests on two hypotheses, each of which requires scrutiny. The first is that publics are generally anti-torture and so can be mobilized, or alternatively, that if they are not already antitorture, campaigns can provoke them to turn against torture and then mobilize them to act. The second hypothesis is that public pressure changes government policy, or the action of institutions in which torture occurs. With regard to the first hypothesis, it is only recently that social scientists have examined what publics think about torture, with the first study focusing specifically on international public opinion being published only in 2011.35 The good news about the results from the point of view of naming and shaming is that in general, the majority of people were found to oppose torture. The qualification is that levels of support vary considerably. Comparing regions, people in Western Europe, Canada, and Australia were most opposed to torture, followed by people in Latin America, East Europe, and the Middle East, and then Asia and Southeast Asia, where publics are divided on the question of torture. African countries exhibited relative majorities in favor of torture (that is, more people are for than against torture, but those in favor of torture make up less than 50 percent).36 One should, however, exercise caution in drawing definitive conclusions from these data. In almost all cases, there were considerable proportions of people who placed themselves in the “undecided” or “don’t know” category. In India, for example, while 35% said that they approved torture and only 23%

35

36

Miller, “Torture Approval in Comparative Perspective.” Other key studies include Kull et al., “World Public Opinion on Torture”; Gronke et al, “US Public Opinion on Torture, 2001–2009.” These findings are from Miller’s study, but it should be noted that a survey that Amnesty International conducted on attitudes to torture in twenty-one countries across every region produced findings somewhat different to Miller’s, most likely due to the phrasing of the question rather than shifts in attitudes. See Amnesty International, Attitudes to Torture (London: Amnesty International, 2014).

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said that they opposed it, 45% fell into the undecided/don’t know category. Without further information, it is impossible to know where these people might actually fall, and at 45 percent this could sway the conclusion in either direction. In fact, in a recent survey that the ICRC conducted on public attitudes to torture, the steep rise in the proportion of people who answered “don’t know” or “prefer not to answer” was one of the significant findings.37 The study indicated two further findings of particular interest. First, since their last survey in 1999, there has been a significant decrease in the proportion of people who, while indicating that they opposed torture in general, retained that opposition in cases where they were told it would be used against an enemy combatant to obtain important military information (from 66 percent to 48 percent). Second, there was a high level of variability in the way that people in different country contexts answered this question, with the highest acceptance of torture against enemy combatants being in conflict-affected countries.38 Such findings concerning attitudinal variability between countries are particularly important for our purposes, not least because, as this ICRC study indicates, the most pro-torture publics seem to be found in places where the risks of torture occurring are at their highest. How might we interpret the variability? Peter Miller tested three hypotheses concerning public attitudes toward torture.39 The first, that opposition to torture increases with levels of economic development, and the second, that opposition to torture increases with democratic consolidation, both flow directly from fairly well-established social scientific theories concerning the correlation between these macroeconomic and political variables and personal integrity rights.40 Miller found confirmation of the first hypothesis (with the United States and South Korea as exceptions) and a weak correlation with respect to the second. More importantly for our purposes, he also looked at the relationship between political repression and public attitudes toward torture. Here he found that where there is less political repression, there is greater opposition to torture (again with the United States as an exception). What this seems to tell us, unsurprisingly but also worryingly, is that publics are most ambivalent about torture where it is most likely to be practiced in a systematic way. This 37

38 39 40

Between 1999 and 2016, the proportion answering “don’t know” or “prefer not to answer” rose from 7 to 16 percent. International Commission of the Red Cross, People on War, 10. Ibid. Miller, “Torture Approval in Comparative Perspective.” On these macro correlations see Steven C Poe, C Neal Tate, and Linda Camp Keith, “Repression of the Human Right to Personal Integrity Revisited: A Global Cross-National Study Covering the Years 1976–1993,” International Studies Quarterly 43, no. 2 (1999).

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may be bad news for human rights defenders trying to mobilize domestic publics to be a force for change in countries where there are high levels of torture, especially in light of my earlier discussion about the critical role that local citizens and civil society play in bringing about change, and translating international norms and opposition into local impact. Or perhaps more constructively, this tells us that before human rights advocates can mobilize public opinion, they must first focus on finding ways to change it. In any case, the data provide us with important insights into country differences that we ought to take into account when developing strategies. They also confirm that it would be a mistake to generalize from the successful application of particular strategies in some contexts (for example Latin America) to the prospects of success in others (for example South Asia).41 Discussing the problem of public opinion in the United States and torture in the post-9/11 context, in a piece appropriately entitled “The Quality of Outrage,” Dinah PoKempner of Human Rights Watch suggests several principles for effective campaigning to change public opinion around torture. First, fight euphemisms and trivialization wherever they occur in public discourse. Second, identify and redirect the emotional associations that images and words around torture evoke. Third, deploy the apprehension of danger (which is often used to justify torture) as a means of inhibiting the resort to torture. Fourth, both establish that torture does not work and develop a powerful alternative narrative about what does. Finally, identify the frameworks that have allowed for responsibility to be deflected and problematize the issue of social and political collaboration.42 To this we might add the insights from the anthropological work discussed in Section 2 concerning the importance of linking international standards with local normative frameworks and languages. Turning to the second hypothesis, we also need to ask whether governments take actions to bring about the elimination of torture as a result of pressure from NGOs and civil society, and also from other states and international human rights organizations and networks. The principle that governments are responsive to the expressed wishes of civil society is of course a basic tenet of 41

42

This is important because much of the qualitative literature highlights case studies from Latin America. See Kathryn Sikkink, Mixed Signals: US Human Rights Policy and Latin America (Ithaca, NY: Cornell University Press, 2004). See also Kathryn Sikkink, “Human Rights, Principled Issue-Networks, and Sovereignty in Latin America,” International Organization 47, no. 3 (1993); Ellen L Lutz and Kathryn Sikkink, “International Human Rights Law and Practice in Latin America,” International Organization 54, no. 3 (2000). Dinah PoKempner, “O Discurso do Terror e a Prevenc¸a˜o da Tortura” [“The Quality of Outrage”], in Tortura Na Era Dos Direitos Humanos, edited by Nancy Cardia and Roberta Astolfi, 127–146 (Sa˜o Paulo: Editora da Universidade de Sa˜o Paulo, 2008).

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democratic politics, but its realization in this context still demands scrutiny. The fact that a state is democratic is no guarantee that it will respond to civil society pressure in all areas of policy, particularly in relation to matters it defines as falling within the ambit of state security.43 Moreover, many of the countries where torture occurs, even if nominally democratic, have weak democratic processes, particularly in relation to the security sector.44 Putting these two hypotheses together, we might conclude that the links exist to support the translation of naming and shaming into state action, but they are contingent and, in the contexts where they are most important, particularly fragile. Turning now to evaluations of how effective naming and shaming has been in preventing torture, the case is somewhat unclear. There is ample evidence that human rights NGOs have made tremendous strides in changing the global landscape in relation to human rights. They have been instrumental in inserting human rights into media and policy discourses, and in establishing a vast machinery of instruments, institutions, and funded programs as well as state support, as evidenced by ratifications, domestic laws, and support for human rights programs. The realist claim that norm-setting activities cannot make a difference to state policy would thus seem to have been comprehensively challenged. Nevertheless, the creation of processes or the establishment of discourses, even ones that have wide circulation, should not be conflated with achieving outcomes, and consistent evidence of outcomes is harder to come by. Korey’s analysis of Amnesty International’s campaign against torture is a case in point. He concludes that “the Campaign for the Abolition of Torture was one of the most successful initiatives ever taken by an NGO”45; only the measures that he uses to reach this conclusion are the creation of legal standards and the generation of accusatory monitoring to name and shame governments into more legal standard setting. That conclusions about impact rest on findings about outputs and not outcomes has been a consistent problem in the human rights world, unsurprisingly given the notorious difficulty of robust outcome- or impact-based evaluation in fields where we are talking about practices that take place in secret and are opaque to measurement, and

43

44

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The way in which states invoke security concerns to trump the normative messaging of human rights campaigns is well illustrated in Anja Jetschke, Human Rights and State Security: Indonesia and the Philippines (Philadelphia, PA: University of Pennsylvania Press, 2011). Gavin Cawthra and Robin Luckham, Governing Insecurity: Democratic Control of Military and Security Establishments in Transitional Democracies (London: Zed Books, 2003). William Korey, NGOs and the Universal Declaration of Human Rights: A Curious Grapevine (New York: Palgrave, 2001).

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where any changes we might discern could have been the effect of various independent variables.46 This problem is exacerbated by the extended temporality and complex set of interacting variables that might be at work. To the extent that it has an effect on the incidence of torture, naming and shaming forms part of a set of sequenced or linked developments and actions, and, indeed, some of those developments may affect torture in an indirect manner. So, for example, exposure of violations and campaigning may bring about shifts in public discourse and the normative landscape, such that torture comes onto the agenda of public debate, making the actions of the state in places of detention a matter of public interest and concern. These informational and discursive shifts then provide a context in which more direct action becomes possible. As such, they are best understood as being among the preconditions for more direct prevention strategies to get off the ground. Such arguments would certainly seem reasonable and consistent with what we know about the importance of framing and agenda setting in bringing about policy change, and with the generally accepted model of policy formulation and change in which agenda setting is understood as a necessary component, and one that needs to occur early on.47 As my brief discussion of the criminological literature on the cultures of policing intimated, part of the problem with such assumptions may, however, be that significant gaps exist between formal laws and even official state policy and the practices of those who perpetrate torture – gaps that are populated by a range of other relationships and dynamics. Put otherwise, formal laws and official policy may be a relatively weak steering mechanism when it comes to the practices of law enforcement and security organizations. In some of the contexts where torture is prevalent, this problem may be still further exacerbated by the fact that we are not dealing with a fully integrated political system in which

46

47

For an early analysis of the problem of impact evaluation in human rights, see Carr Center, Measurement and Human Rights: Tracking Progress, Assessing Impact, Carr Center Project Report. Cambridge, MA: Harvard University, 2005. An excellent study on impact evaluation in the field of human rights education, canvassing many of the conceptual issues concerning short- and long-term impact, individual and systemic impact, and the difficulties of measurement, see Equitas and United Nations Office of the High Commissioner for Human Rights, Evaluating Human Rights Training Activities: A Handbook for Human Rights Educators (Montreal: UN Office of the High Commissioner for Human Rights, 2011). A classical text on the centrality of agenda setting is Elmer E Schattschneider, The SemiSovereign People: A Realist’s View of Democracy in America (Boston, MA: Wadsworth, 1960). See also Maxwell E McCombs, Donald Lewis Shaw, and David Hugh Weaver, Communication and Democracy: Exploring the Intellectual Frontiers in Agenda-Setting Theory (Mahwah, NJ: Lawrence Erlbaum Associates, Publishers, 1997).

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security sector organizations or security personnel are located within a system of vertical authority, with political representatives having ultimate control. Indeed, in a study on the relationship between the legalization of human rights norms and compliance in practice in Latin America, Lutz and Sikkink found that whereas the prohibition against torture was more highly legalized than either the prohibition against enforced disappearances or the right to democratic governance, of the three, torture had seen the lowest rate of reduction in the region.48 One of principal explanations they suggest for this finding is that legal approaches will be most effective when control over the violation is highly centralized, whereas decisions about torture may be both centralized and decentralized. Where the latter is the case, “even where state policy categorically outlaws the practice, police and security officers at local or regional levels may continue to use it.”49 Moreover, as Lutz and Sikkink conclude, in countries with legal systems “penetrated with corruption or unresponsive prosecutorial or judicial procedures, or that lack the political will to investigate and prosecute police or security officers who engage in such conduct, decentralized torture is likely to continue despite declared or legalized national policy to the contrary.”50 Thus, while no doubt a vertical structure of authority is at work in the case of certain types of torture, with low-level operatives carrying out the expressed or implied will of political elites, in many cases torture is generated and sustained within lower-level systems themselves. Here, while it may be carried out with the tacit approval of elites, it is not generated by, and cannot simply be curtailed by, their demands. Where this is the case, even if the political leaders who NGOs target are convinced that it is best (for normative or pragmatic reasons) to curtail torture, translating this into the systems of informal norms and actual practices will require a more sophisticated and multisystemic set of interventions. The reality and impact of this type of institutional fragmentation or disconnect is far too often overlooked in the development of prevention strategies. In recent years, social scientists have turned their attention to more robustly assessing the impact of “naming and shaming” on torture reduction or prevention. The aggregate wisdom is inconclusive, in part, Hafner-Burton and Ron argue, due to vast methodological differences in the approaches that qualitative and quantitative scholars have taken.51 Quantitative studies, especially early ones such as those conducted by Poe and Tate (who were looking at personal integrity rights, of which torture is a subset), found that the

48 49 50 51

Lutz and Sikkink, “International Human Rights Law and Practice in Latin America.” Ibid., 639. Ibid. Hafner-Burton and Ron, “Seeing Double”. The discussion that follows draws on their survey.

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principal factors affecting rates of violation were macro ones such as authoritarianism, population size, and per capita income.52 Qualitative researchers, by contrast, were optimistic, finding that transnational activism assisted local activists to press regimes to respect human rights. As noted in my comments about Korey’s assessment of the success of Amnesty’s campaign, one notable feature of most of these studies is that the impacts on which they focus tend to be formal laws or discourses, rather than measurable changes in practice or empirically measured reduction in torture. Thus Hafner-Burton and Ron point to numerous studies documenting the construction and diffusion of human rights norms and human rights laws, studies that assume, if only implicitly, “that better practices are likely to follow.”53 The later quantitative studies that focused more specifically on factors that led to the reduction of torture provided more nuanced results, suggesting that accusatory monitoring does not, in itself, reduce violations, but that it can do so and when it does, it is operating in conjunction with a number of other conditions. Two studies well illustrate this interaction of factors. Based on analysis of a sample of 873 cases of naming and shaming in seven Latin American countries, James Franklin found that states do respond to criticisms from other countries with which they have strong economic ties, but that the impact is sustained for only about six months.54 He also found that governments were more likely to respond to criticisms from NGOs, religious organizations, and other states than they were to international organizations. Examining the impact of naming and shaming campaigns in 145 countries between 1975 and 2000, Hafner-Burton also found little consistency in response, with some instances of violations being exacerbated and others of violations being reduced.55 The difference depended to a significant extent on the type of violation, and, indeed, the data indicated that governments might actually offset nonresponsiveness to criticism in certain areas by bringing about reforms in others. In general, the literature indicates that if accusatory monitoring is to work, international pressure must be applied to states where there is no national security threat, where economic interests of domestic elites are threatened by norm violations, and where pro-human rights constituencies have broad social

52 53 54

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Poe, Tate, and Keith, “Repression of the Human Right to Personal Integrity Revisited.” Hafner-Burton and Ron, “Seeing Double,” 369. James C Franklin, “Shame on You: The Impact of Human Rights Criticism on Political Repression in Latin America,” International Studies Quarterly 52, no. 1 (2008). Emilie M Hafner-Burton, “Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem,” International Organization 62, no. 4 (2008).

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support domestically.56 Interestingly, the quantitative literature also seems to speak back to the claim one finds in the qualitative research (and policy theory) that discursive shifts precede shifts in practice. The studies also make the important finding that different states respond to different pressures in different ways, so that while we may be able to affirm that, in general, public naming and shaming of abusive governments may lead to strong outputs in media mentions and NGO reporting and pick-up, the results in government responsiveness are far more mixed. One scope condition that does seem to make a significant difference is countries being in the process of democratizing, in which case, the window for reform is open to an unusual degree and there is thus greater opportunity for uptake of human rights norms at the legal and institutional level.57 This finding has important implications for thinking about the timing of campaigns and campaign selection. By reporting these mixed results and counseling caution, I am by no means denying the important effects of accusatory monitoring, nor suggesting that it should be dropped from the human rights toolkit. Irrespective of whether an accusatory monitoring or naming and shaming campaign achieves the ultimate objective of reducing torture in a particular location, it is likely to produce a number of important proximal outcomes. For example, robust research provides activists and scholars with accurate evidence of where, how, and to what extent torture is occurring – a factual base on which any sound strategy must be built. Second, well-crafted public campaigns have been shown to shift public opinion, build domestic constituencies, and change the norm landscape in which politicians (and others who are ultimately responsible for bringing about policy changes) operate. And exposing where governments are failing to live up to the standards by which they will be judged electorally, or in terms of international relations, may convince them of the need to take action. Moreover, we should not dismiss the importance that the experience of solidarity can have for those who are suffering violations, nor of their knowing that there are people on the outside who hold them in mind and protest the abuses they are experiencing. Even if these forms of advocacy do not stop the torture of a particular individual, they do thwart the processes of rendering her invisible and worthless, objectives that torture sets out to achieve. At the same time, given that ultimately naming and shaming does set out to stop torture, paying attention to the scope conditions for success may assist in making it a more effective and more targeted approach to prevention. 56

57

Sonia Cardenas, Conflict and Compliance: State Responses to International Human Rights Pressure (Philadelphia, PA: University of Pennsylvania Press, 2010), 115. Simmons, Mobilizing for Human Rights.

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How Effective Has Torture Prevention Been? 4 TRAINING

Despite the large volume of training material that has been generated for addressing human rights violations in the security sectors, and the extensive investment that international organizations and international NGO have made in developing and delivering human rights trainings, we have a surprisingly poor understanding of the state or impact of this strategy. When I commenced trying to map the field of human rights training and to work out what we knew about how it worked, I found that training resources and materials had not been systematically collected, organized, shared, or analyzed, and that there was a dearth of robust evaluation of their impact. In their global evaluations, Carver and Handley found a very small effect from training, but on examining the qualitative material, what they found to be effective was not the standard forms of training that point out how existing practices may violate human rights, but rather training that provided personnel with the skills they required to effectively and ethically carry out their roles, that is, in ways that respect human rights.58 This finding is consistent with my discussion in the previous chapter. Facing the gap in robust evaluation of human rights training for security sector personnel in particular, as part of the torture prevention project that formed the empirical basis for this book, I sought to put together a database of the material that had been developed by international organizations, NGOs, and security sector organizations themselves. Where primary material was not available in the public domain, I sought information about the type of training being conducted and what we know about its impact through an international survey, supplemented with expert interviews.59 What I discovered did not paint a particularly positive picture of the effectiveness of this approach as a way of preventing human rights violations in general, and torture in particular. To start with, although most human rights training materials explicitly acknowledge or implicitly assume the tripartite approach to behavioral change (knowledge, attitudes/values, and skills), if one examines the substantive material that is taught, and the pedagogic methods that are

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Carver and Handley, Does Torture Prevention Work?, 80; 98–99. For a detailed discussion of the methodology and findings, see Danielle Celermajer, International Review: Current Approaches to Human Rights Training in the Law Enforcement and Security Sectors (Sydney: University of Sydney, 2015), http://sydney.edu.au /arts/research/ehrp/downloads/EHRP_International_Training_Review.pdf.

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most broadly adopted, what one sees is that the overwhelming emphasis is on the transmission of knowledge about human rights law.60 The bulk of the material comprises information on the content of human rights treaties and relevant domestic human rights laws, including codes of conduct. Training manuals generally recommend that the presentation of this information should be framed by explanations of why security personnel ought to respect human rights, setting out both normative and instrumental reasons.61 The approach to attitudinal change is, in other words, almost entirely informational (prescribing change), despite there now being a well-developed body of literature in cognate areas such as public health that clearly indicates that knowledge, even when presented as exhortation, is not sufficient to bring about attitudinal change.62 Early analyses of human rights training for the police criticized it for being insufficiently practical and emphasizing negative indictments rather than providing positive guidance.63 In response, most trainings today try to link human rights principles and laws with various operational aspects of security work. Even then, however, the standard approach remains formal and legalistic. Specific provisions of human rights law are linked, in a fairly formulaic manner, with specific aspects of the job, such as arrest, detention, or interviewing. It is little wonder that most of the security sector personnel to whom we spoke experienced training as overly abstract and disconnected from their experience and work. Some training materials do encourage more active pedagogic styles such as role-plays and practical exercises so as to engage trainees more directly and less

60

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See Danielle Celermajer and Kiran Grewal, “Preventing Human Rights Violations ‘from the Inside’: Enhancing the Role of Human Rights Education in Security Sector Reform,” Journal of Human Rights Practice 5, no. 2 (2013); Danielle Celermajer, “The Ritualization of Human Rights Education and Training: The Fallacy of the Potency of Knowing,” Journal of Human Rights 16, no. 2 (2016). As per note 79 on pp. 62–63, Ethical Investigation: A Practical Guide for Police Officers sets out thirteen reasons why police should not use torture on suspects. See Denmark 39–42. Martin Fishbein and Icek Ajzen, Belief, Attitude, Intention and Behavior: An Introduction to Theory and Research (Reading, MA: Addison-Wesley Publishing Company, 1975); Robert J Donovan and Rodney Vlais, VicHealth Review of Communication Components of Social Marketing/Public Education Campaigns Focusing on Violence against Women (Melbourne: VicHealth, 2005). Francesca Marotta, “The Blue Flame and the Gold Shield: Methodology, Challenges and Lessons Learned on Human Rights Training for Police,” International Peacekeeping 6, no. 4 (1999).

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theoretically in the material, and presumably to give them the opportunity to explore what the abstract norms might look like in practice. Unfortunately, the data I collected indicated that training groups tend to be very large, and that few trainers have received training in how to use participatory pedagogies or in the dynamics of bringing about attitudinal change. For the most part, even if a manual encourages participatory exercises, training comprises lectures where abstract information is transmitted with little connection made to the actual context in which the people who are supposed to be changed as a result of participating in training live and work. As we have already seen in other areas, there seems to be a problematic conflation of exhortation and performance, or between telling someone what they ought to be doing and appreciating what would have to occur for them to be able to act in the desired manner. Operationalization is, in other words, collapsed into normativity. Much of this is not picked up in what passes for evaluation, which in most cases comprises a questionnaire that seeks to capture how trainees felt about the training or to test what knowledge they acquired. Although guidelines for the robust evaluation of training clearly indicate that to find out if training has had the desired effect we need to attend to medium- and long-term uptake of its messages, both at the individual and at the organizational levels, this quality of evaluation has been woefully lacking in this field.64 Again, none of this means that training could not make a contribution to the prevention of torture, and it is likely that in combination with other interventions aimed at organizational transformation, it can.65 Training that merely transmits knowledge about what people ought to be doing, without attending to the conditions under which they are working, the normative frameworks that are already embedded in the structure and processes of their work, how they hold or understand human rights, and the types of incentive structures within which they are operating is, however, unlikely to make even this difference. Indeed, even if it manages to alter what they think they ought to be doing, or their aspirations for how they would like to be able to behave, unless training is allied with strategies that alter the conditions within which they operate, and also build their capacity to change those conditions, it may be difficult if not impossible for all but the most senior and morally independent personnel to translate those values and attitudinal shifts into action. 64

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For a guide on sound evaluation practices for training, see Equitas and United Nations Office of the High Commissioner for Human Rights, Evaluating Human Rights Training Activities. William G O’Neill, Police Reform and Human Rights (New York: Hurist, 2004).

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Detention Conditions and Safeguards

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The constraints of the standard approach to training came through poignantly in an interview I conducted with a retired police officer who had worked extensively delivering human rights training across different regions.66 He recounted an incident that occurred in the context of delivering human rights training to a group of about one hundred cadets training to be officers in Russia. In the evening after the training, he was with the commander in his office, when someone came to the door and said that some of the cadets wanted to speak with him (the trainer). When he went to speak with them, they said, “We heard what you said and we absolutely agree with you but do you know how hard it will be for us to apply what you said? Do you have advice?” Reflecting on this incident and his training career, he told me that the problem lies with “the culture of the organization.” In this case, he said, the culture was based on corruption and using violence, threats, and intimidation, on state-imposed control mechanisms, and not on serving the community. His point is one that has far broader implications: human rights training in the absence of strategies that address the organizational culture, and more broadly the ecology within which the organization sits, will have little impact. 5 DETENTION CONDITIONS AND SAFEGUARDS

The conditions of, and safeguards on detention did not constitute a distinctive strategy for prevention within the schema I presented in Chapter 1. I did, however, note that key commentators and organizations, including Delaplace and Pollard (for the APT), Amnesty International, Manfred Nowak, and Darius Rejali, converge on identifying the conditions of detention as critical in determining whether torture occurs or not. In this regard, it is striking that Carver and Handley found that of all of the measures tested, the factors they classify as “detention measures” had the most impact on reducing torture – more, that is, than criminalization and punishment, monitoring, and complaints.67 In making this finding, they note that the types of changes that they found to be effective have been repeatedly stressed by oversight and monitoring bodies, but are not strongly emphasized in international instruments.68 Of particular importance were: no unofficial detention, family notification upon detention, being informed of, and exercising the right to see, a lawyer, and independent medical inspections. 66 67 68

Interview conducted June 10, 2012. Carver and Handley, Does Torture Prevention Work?, 67–68. See, for example, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, CPT Standards, CPT/Inf/E (2002) 1 – Rev.2015 (Strasbourg: Council of Europe, 2015).

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Mapping these onto a ToC analysis, one might say that unofficial detention and detainees’ lack of access to family, legal counsel, and medical inspections are all causal or conditioning factors for torture, and accordingly, that ensuring that they are countered will contribute to preventing torture. What is still required are strategies for achieving these objectives – ensuring that all detentions are recorded, and that families, lawyers, and medical inspectors have access to detainees. Looking at Carver and Handley’s analysis, one once again finds that, as was the case with punishment, there was a significant gap between the existence of legal provisions mandating these practices and the existence of practices themselves. Indeed, none of the legal provisions on their own had a significant impact on reducing torture. This suggests the critically important question, what needs to occur to ensure that these detention practices are in place? The case studies explored in Carver and Handley’s collection shed important light on why legally mandating these practices is far from sufficient. Indeed, these cases illustrate how a range of factors, which I label “situational,” and which lie beyond the absence of legal regulation, impede the practical implementation of detention-related measures. In their discussion of prompt presentation before a judge, for example, Carver and Handley note that even where a detainee is brought before a judge, this oversight may fail to protect them from torture, adding that “insufficient judicial independence may be structural” or “inherent to a situation.”69 To illustrate, they note cases where prosecutors are recognized as judicial authorities (even though as prosecutors they may have an interest in not raising objections to confessions obtained under torture), or where the judges share the same compounds as prosecutors and are protected by the same police on whose alleged abuse they are being asked to rule. It is here, in closely tracking what actually happens in concrete situations where torture persists even in the face of the existence of formal laws mandating the correct conditions of detention, that we can begin to come close to understanding the types of factors that keep in place problematic detention practices, or that impede their reform. In Indonesia, for example, although there are legal prescriptions concerning access to lawyers, human rights advocates working on the ground explained that in practice, detainees may not be able to afford a lawyer, and that lawyers provided by the state may well be selected by and closely associated with the police themselves.70 In a similar 69 70

Carver and Handley, Does Torture Prevention Work?, 76. Budi Hernawan and Chris Sidoti, “Indonesia,” in Does Torture Prevention Work?, edited by Richard Carver and Lisa Handley (Liverpool: Liverpool University Press, 2016), 231–72.

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vein, despite the existence of legal prescriptions concerning the reliance on confessions for convictions, “judicial tolerance” leads to such evidence being given significant weight in practice. The “failure of leadership” from senior officers in the military and police leads to weak supervision of operational personnel and their failure to observe mandated procedures. In India, doctors do routinely examine detainees after arrest, and in 1994 video recordings of autopsies after deaths in custody or extrajudicial killings were mandated. Studies on the views of medical practitioners and students concerning torture, however, have indicated that majorities saw its use as justified for uncooperative suspects, as well as being unavoidable.71 As I will discuss in Chapter 4, these findings strongly resonate with the ones that we made when we studied the factors that underpinned the persistence of torture in Nepal and Sri Lanka and the impediments to torture prevention. What I would like to draw particular attention to is the difficulty in characterizing or pinpointing exactly what the impediments are. The tendency, as I will discuss over the following chapters, is to refer to these as “cultural” or “attitudinal” factors, and to point to “training” as the answer. As I discussed in Section 4, however, training has not proven to be an effective strategy in altering the “cultures” that sustain violence and impede institutional reform. Culture and attitude, in this sense, serve as explanatory devices that give the appearance of telling us what is going on, but, as generally used and parsed, provide no operationalizable guidance. 6 TAKING THE LESSONS FORWARD

What is the appropriate response to these various findings and analyses of prevention work? When the APT released a summary report of Carver and Handley’s study, they called it Yes, Torture Prevention Works.72 In some respects, this is a legitimate title, given that the study does point to the efficacy of a number of the key human rights approaches and to some significant successes in preventing or reducing the incidence of torture. It is also completely understandable that an organization that has dedicated almost forty years to trying to prevent torture and that is seeking to continue to advocate for such efforts will highlight the positive results that the work of anti-torture organizations produces. And yet, there is much in their study, and the others 71

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Jinee Lokaneeta and Amar Jesani, “Transnational Torture: Law, Violence and State Power in the United States and India,” in Does Torture Prevention Work?, edited by Richard Carver and Lisa Handley (Liverpool: Liverpool University Press, 2016), 501–48. Association for the Prevention of Torture, Yes, Torture Prevention Works (Geneva: Association for the Prevention of Torture, 2016).

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canvassed here, to leave one feeling sober about the efficacy of existing approaches. We seem to be fairly good at knowing what needs to be changed, but less successful at knowing how to bring about those changes. A hard-nosed political realist may respond to these findings with the cynical rejoinder that human rights advocacy, with its tools of soft law and normative persuasion, is by definition insufficiently potent to prevent practices that are fueled by state power sustained by state interest. The international human rights lawyer might counter this skepticism by insisting that the plethora of legal and policy changes combined with case material provide evidence that international human rights regimes, bolstered by the work of local advocates, have significantly curbed state abuse. The broad body of evidence garnered through a range of methodologies, supplemented by the analytic process we have moved through in this chapter, suggests a more mixed picture, and a less positional conclusion. It seems that in different contexts, different approaches can have effects in reducing, if not eradicating, torture. If we are neither to succumb to the realist’s cynicism, nor be enticed by idealists’ insistence on steady progress, we need to pay close attention to what these analyses have to say about the strengths, weaknesses, and scope conditions of different approaches. Still, there are reasons why this more mixed and cautious conclusion may not be met with broad assent. The institutional divide between activists and scholars, a certain skepticism among activists about the value of social scientific research, and the powerful pull that stories of success have on people’s intuitive views and feelings about what works all impede the easy uptake of these findings and the curiosity they might engender about effective strategy. Bureaucratic inertia, the tendency to continue to tread the well-worn path, the dominance of certain disciplinary or professional perspectives, selective expertise, the hegemony of particular approaches, and even the pleasures associated with adopting certain types of strategies and the ethical positions they entail may all contribute toward entrenching particular ways of doing human rights. At the same time, knowing that certain types of approaches have limited effect does not in itself deliver a positive alternative. Critique is all too easy and coming up with constructive strategies for transforming entrenched practices and norms all too difficult. The analyses of existing approaches do, however, provide us with some points of orientation for moving forward. First, they suggest that tertiary prevention, or in this case strategies aimed at punishing perpetrators, need themselves to be grounded in a range of institutional mechanisms that go beyond the passage of formal laws. In this sense, tertiary prevention always

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already points to primary and secondary prevention. Second, they highlight the importance of attention to context. As evaluations moved from the early high-level macro studies that delivered pronouncements of success or failure, to finer-grained studies, they consistently showed that the different effects that strategies have depend on a range of scope conditions, and as such, that understanding the conditions of the site where the strategy is being used will be critical to its success. Third, over and again, what comes up as important in effective prevention is the development of practical interventions, or interventions in the operation of the systems in which torture occurs – conditions of detention, access to lawyers and doctors, rules of evidence. At the same time, prevention campaigns too often operate at the level of declaring that these institutional and practical reforms should be put in place, with insufficient attention to the political and institutional dynamics of bringing those prescriptions to fruition. In this regard, working out how to get buy-in from those proximate to the site of change, or a way into the institutions in which the reforms need to take place, seems to be critical. Knowing what the end-state should look like does not in itself tell us how to bring about the organizational and cultural changes required to entrench these as sustainable practices. This analysis also illuminates the importance of making explicit the Theories of Change that usually implicitly underlie prevention strategies, and then testing the hypotheses about causality and change on which they are based. Sometimes making the ToC explicit will immediately expose what is wrong with it. Sometimes, what would seem intuitively correct will turn out to be wrong when we test it against what we know about causality or how change occurs. Sometimes, making a ToC explicit will help identify the gaps that need to be filled with research or a stronger intervention. In fact, in the cognate area of public health, meta-evaluations of prevention strategies identify having an explicit ToC as one of the key conditions for success.73 In order to ensure that such a theory is based on an understanding of the problem to be addressed and its causes, it should in turn be derived from a close empirical analysis of the problem in situ. Indeed, these meta-evaluations also found that successful prevention was more likely where interventions had been shaped in a way that was responsive to the social and cultural beliefs and practices of the target group. Similarly, interventions that are multidimensional, addressing the problem at a number of causal levels simultaneously and in a coordinated

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Maury Nation et al., “What Works in Prevention: Principles of Effective Prevention Programs,” American Psychologist 58, no. 6–7 (2003); Erin A Casey and Taryn P Lindhorst, “Toward a Multi-Level, Ecological Approach to the Primary Prevention of Sexual Assault: Prevention in Peer and Community Contexts,” Trauma, Violence, and Abuse 10, no. 2 (2009).

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manner, are more successful, as are those where the strategy includes a robust evaluation. If we hold these criteria for success in mind and think about the types of Theories of Change that have underpinned the major intervention strategies, we might question the extent to which they have in fact been based in robust, empirically grounded theories of causality. Admittedly, large concepts such as impunity, invisibility, unaccountability, and a failure to hold beliefs and attitudes that embrace human rights have a role to play in the causal story, but that role is underspecified. What is more, none of these large concepts bring us sufficiently close to the actual operation of organizations or the organizational and interpersonal dynamics in which torture is catalyzed and sustained. Perhaps most importantly, the evaluation literature points to the importance of systems and practices that sustain torture, thus pointing to an awareness that although individual human agents perpetrate torture, it is the context in which they are acting that needs to be changed. This finding is consistent with the rich body of research that has been conducted since the late 1960s on the conditions under which institutional violence occurs – research that points to the salience of structures or systems, as opposed to agents and their dispositions. It is to this body of thinking that I now turn.

Vignette 3

I’ve now spent months reading through human rights training manuals and trainer handbooks to get my head around how human rights organizations go about using training and education in the security sector to try to prevent torture. I find myself increasingly frustrated by the reams of paper dedicated to rehearsing the provisions of international law. The mismatch between content and target imprints itself with particular vividness when I am traveling in the field. There, what I see are often appalling physical conditions, societies that are deeply divided, certain groups or classes of people consistently dehumanized, routine and everyday violence, political corruption, and, often, a palpable hostility to human rights and the “imperial” world that they represent. There is something absurd about lobbing such formal, abstract, and remote legal provisions into the lived worlds of security personnel. Today, though, I am back at my desk, and another organization with whom we have been sharing our thinking has confidentially sent me the draft of a new training program that they are developing. They too have come to understand that when people are working in contexts of institutional violence, their individual dispositions or moral commitments, or what they “know” about law, may not be sufficient to have them swim against the current of “how we do it around here.” They’ve also been doing their homework, studying the research on institutional violence and the influence of situational factors. The training slides start by making all the usual moves – why police ought to respect human rights, what international and domestic law says about the human rights standards that police need to respect, how to arrest and interview in a manner that respects human rights, and so on. At about slide 16, the course turns in an unusual direction. A few slides appear on the Milgram experiments. They describe how “ordinary people,” people with no particular predilection to commit violence, are brought into an experimental situation 99

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where they are told by an authority figure to inflict high-voltage electric shocks on strangers. Over 60 percent of them comply. The slides then briefly explain that situations and not dispositions are what cause people to act immorally. I’m struck by the dilemma that this attempt to build recognition of the situational basis of torture into a training makes apparent. If how people act in institutional settings is not the result of their conscious reflective choices, but shaped by institutional factors, what difference could it make to know this? Can we find a way of adding knowledge about the situation to the reflexive process so that agents’ own decisions can trump situational factors? This seems like a return to the very faith in our reflexive capabilities that the social science research calls into question. At the same time, I’m still not clear how the insights into the situational underpinnings of violence can be married with our intuitions about ourselves as agents responsible for what we do. My colleagues, like me, clearly see the relevance of this research, but none of us have quite worked out how it translates into prevention strategies.

3 The Situational Conditions of Institutional Violence

1 CAUSAL STORIES AND TERMINOLOGICAL CHOICES

In the course of discussing and evaluating the principal approaches that have been taken to preventing torture in Chapters 1 and 2, I argued that each was (at least implicitly) based on a ToC, and that these Theories of Change all encoded a particular analysis of the causes of torture. The logic that Theories of Change make explicit is that if one has an idea about how one is going to overcome a problem or change a state of affairs, especially a persistent one, one needs to have a theory about why the problem occurs and why it continues to exist. In this chapter, I enter more deeply into the question of how we might best understand the causes of torture, locating this question within the practical enterprise of seeking to develop a ToC that will support the most effective prevention strategies. To do this, we need not only to substantively identify what those causes are, a task I turn to in Section 3; we also need to think through what we mean by “a cause” and the type of factors that ought to count as causes. Further, because when we are talking about a phenomenon such as torture we are likely to come up with causes that operate at different registers, we need to think through how those different types of causes can be mapped against each other so as to create a causal story that is not only complete and accurate, but also coherent. As soon as one starts to do this, it becomes apparent that the singular concept cause needs to be broken down, and a greater degree of conceptual specificity and variety is required to provide the theoretical resources to explain how torture comes about. The need for greater specificity vis-a`-vis the different meanings of the generic term “cause” was already evident, albeit implicitly, in the claim that the former Special Rapporteur on Torture, Nigel Rodley, made and that I quoted in Chapter 1, that torture ought to be seen as a crime of opportunity, 101

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and following from this, that the conditions of detention play a central role in sustaining or preventing torture. The proposition that torture is a crime of opportunity implies that among the factors that form part of the causal story, we need to include not only those located at the level of perpetrators (their intentions or beliefs, or the purposes for which they are acting), but also those pertaining to the situation within which the violation occurs. The effect is to broaden our attention to include the context in which the wrongdoing occurs. In its standard application, when one talks about a crime being one of opportunity, what follows is an analysis of the factors that currently facilitate or would potentially impede the commission of the crime – for example unsecured locks or the absence of CCTV – rather than an analysis of, say, the immediate motivation of the thief. At the same time, in making this move we do not dismiss the idea that a thief’s wish to accumulate wealth or obtain particular types of goods counts as a cause for his or her actions, albeit one of a different order to the fact that the goods are not secured and so readily accessible. How, though, ought we to think about the relationship between those factors that create opportunities for a crime to occur and those that inhere in the perpetrator? To answer this question, we need to have a more fine-grained set of distinctions about the types of factors that can count as causes and a map for how they relate to one another. The literature that I will discuss in this chapter, focusing on the situational causes of institutional violence and on the cultural context in which institutional violence occurs, positively moves us from the register of the immediate causes of violence, which are located at the level of the individuals who perpetrate torture and those involved in its perpetration (those who gave the orders for example), to the register of the context in which torture occurs. A few words about terminology are in order here. There are a number of terms we might use to describe the factors that operate at the level I have, very broadly, named “context”: systemic factors, structural factors, and situational factors being three obvious candidates. While related, each of these qualifiers has somewhat different implications and emphases, and each carries certain meanings and connotations within different disciplinary and theoretical traditions. Each captures something of what I want to argue about context, but using them interchangeably is bound to cause confusion.1 We might think of systemic factors as those that reside at

1

Zimbardo also uses these terms, but defines them slightly differently, already building into his definition of “situation” the type of relationship situations have with individual actions, something I would prefer to keep open at the point of definition. See Zimbardo, The Lucifer Effect, 445–46. Giddens organizes the relationship between these terms somewhat differently:

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the level of various institutions that operate across different dimensions of the situation, including not only hard institutions, but also soft institutions such as normative orders or the rules that structure interactions.2 I do not use “systemic” as my general descriptive term because it tends to imply a holistic understanding of institutions (say, the education system or the criminal justice system), whereas I wish to be able to include in my map of causality various factors that operate within these larger systems. “Structure,” a term with a rich and also varied history of usage in the social sciences, can be understood as referring to the enduring patterns transmitted through institutions and the form of social relationships. Like the terms “system” and “situation,” structure can also be understood as referring to the background that shapes individuals’ values, judgments, and behaviors.3 I generally avoid using “structure” as the generic term in this analysis, principally because doing so would seem to tie me to a specific type of analysis and a very particular theoretical tradition, and at the diagnostic point, I see it as important to remain reasonably agnostic about which types of causes or conditions have primacy. As one sees in recent critical human rights scholarship, for example, the reference to structural factors coincides with a quite specific type of analysis and critique. In very broad terms, human rights-based approaches have been accused of failing to address the structural underpinnings of violations, where “structure” is understood in neo-Marxist terms.4 While I take seriously the importance of drawing a connection between discrete human rights violations and macroeconomic structures such as capitalist relations and global trade rules, I do not wish to limit the analysis to this macro level or to prioritize economic relations. Indeed, much of my attention

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“A distinction is made between structure and system. Social systems are composed of patterns of relationships between actors or collectivities reproduced across time and space. Social systems are hence constituted of situated practices. Structures exist in time–space only as moments recursively involved in the production of social systems. Structures have only a virtual existence.” Anthony Giddens, A Contemporary Critique of Historical Materialism: The NationState and Violence (Berkeley, CA: University of California Press, 1987), 26. The term “institution” similarly demands clarification. As a working definition, we might use the one offered by Hodgson in his broad-ranging discussion: “we may define institutions as systems of established and prevalent social rules that structure social interactions.” Geoffrey M Hodgson, “What are Institutions?” Journal of Economic Issues 40, no. 1 (2006): 2. I agree with Hodgson in distinguishing institutions from organizations, which are a special kind of institution involving boundaries and rules of operation and authority. On the meaning of the term “structure” in sociology see, for example, Douglas V Porpora, “Four Concepts of Social Structure,” Journal for the Theory of Social Behaviour 19, no. 2 (1989). The critical human rights literature is by no means monolithic in approach, but the type of critique I am pointing to here is well illustrated by Brown, “‘The Most We Can Hope For. . . ’”; Marks, “Human Rights and Root Causes”; Klein, The Shock Doctrine; Hopgood, The Endtimes of Human Rights.

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will be on meso- or micro-level factors across different institutional spheres.5 Indeed, from the point of view of those seeking to prevent the practice of torture, it will be imperative to locate where, at the meso- and micro-levels, factors that we often describe in macro terms are operationalized, and where, accordingly, they can be counteracted. After all, the prescription to fight global capitalism has little hope of moving beyond an erudite text if it cannot identify specific sites where that battle can take place.6 I will thus principally use the language of situation or situational factors, as this terminology clearly points to supra-individual factors that shape how individuals make judgments, form views, and take actions, without committing to any particular level, sphere, or substantive causal theory. The term is also sufficiently capacious to include hard and soft institutions, processes, and the forms of relations. Nevertheless, because “situation” is a supra-individual term, if we are to look to situational factors to help construct a fuller causal story about the occurrence of torture, we still need a conceptual map that explains how such factors relate to individual-level factors like motive. As I will argue throughout this book, a causal story that will be useful for constructing a robust and operationalizable ToC that can support effective prevention strategies cannot be one that erases the place of agents and agency altogether. In Section 2, I spend some time thinking through how we ought to think about the idea of causality in relation to torture and seek to develop a set of distinctions between different types of causal factors and a way of weaving them into an integrated causal story. With this in hand, in Section 3 I look at what researchers have discovered about the background conditions or situational factors for institutional violence, seeking where possible to understand how these situational factors can contribute to a causal story that nevertheless recognizes human agency. The work that this chapter does in understanding the situational factors that underpin institutional violence and in working out how we can tell a causal story that integrates such factors with more direct causes will then lay the foundation for a more empirically based analysis of the 5

6

The term “structure” need not have this macro reference, although where critical theory follows a Marxist tradition, it does. Iris Marion Young, for example, defines structures as “the confluence of institutional rules and interactive routines, mobilization of resources, as well as physical structures such as buildings and roads. These constitute the historical givens in relation to which individuals act, and which are relatively stable over time. Social structures serve as background conditions for individual actions by presenting actors with options; they provide ‘channels’ that both enable action and constrain it.” Iris Marion Young, “Responsibility and Global Justice: A Social Connection Model,” Social Philosophy and Policy 23, no. 1 (2006): 111–12. The question of the scale at which systems need to be addressed is a contentious one to which I will return throughout this book. I merely touch upon it here.

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actual causes of torture in security sector organizations and at specific sites, which I explore in Chapter 4. Before proceeding, a word of warning about the first part of this chapter. What I am seeking to do here is to sharpen our analytic tools and our language so that we can speak about the conditions that underpin and sustain practices like torture without being forced into a zero-sum game between agent-level factors and background or situational factors. That is, we want to encode situational factors without reducing individuals to some type of automata, and, correlatively, we want to be able to continue to speak meaningfully about actions, agents, and responsibility without erasing the conditions under which individuals act. To do this, I will draw on a number of quite abstract analytic distinctions that some readers may find alienating or tiresome. If this is the case, readers can skip forward to Section 3. Some readers may wish to at least skim the discussion in Section 2(iii) where I lay out the ecological model (see Figure 3.1) that I think is helpful for mapping the different types of causal factors we are likely to find. Once the reader has passed this point, the chapter returns to a far more concrete discussion about the research on the situational factors that underpin institutional violence.

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The Situational Conditions of Institutional Violence 2 WHAT COUNTS AS A CAUSE OF TORTURE?

(i) Causal Talk and Causal Confusion When one asks people from a range of groups, including human rights NGOs, advocacy groups, government officials, and legal professionals, why security personnel use torture, the answer one is most likely to receive is “to obtain information or a confession.”7 In one sense, this answer correctly describes the circumstance under which torture frequently occurs or the purpose that torture often serves. That is, it identifies the proximate reasons for using torture as a security organization’s wish to obtain information or a confession. Although even then, we know that these are not the only proximate reasons, as torture is also used for other reasons or purposes, such as to intimidate, control, or repress certain populations or groups.8 Even as far as it is correct though, this answer is nevertheless problematic for a number of reasons. First, explanations about human actions involve a complex interplay of subjective and objective, or internal and external, facts, but this explanation points us only toward the reasons that an agent who acts would provide for why he or she took the said action (for example, “I did it because we needed information to convict the suspect”). Even when we have this explanation, though, we might well ask a series of further questions: why was this a reason for her, or why did she turn to torture as a way of obtaining information?9 At this point, matters become complicated. Due to the way that we think about human beings and human subjectivity, the types of explanations we give for what human beings do, how they act, and for the reasons that they have for what they do cannot assume the same structure or logic as the explanations we might provide for physical phenomena or events. In the latter case, a phenomenon could conceivably be fully explained in terms of external causes; in the former, the agent (a term entailing notions about her freedom, her will, her choice, and so on) also needs to be part of that causal story.10 And generally, we assume that the person who committed the action of torture is an 7

8 9

10

This conclusion is drawn from data from over 150 interviews carried out as part of this project in Nepal and Sri Lanka, discussed at greater length in Chapter 4. On the types of reasons that torture is used, see Rejali, Torture and Democracy, 45–60. Aristotle’s notion of efficient causation, set out in Physics II 3 and Metaphysics V 2, is in the background here, although I do not adopt his schema of causality. It is outside the scope of this discussion to consider the extensive philosophical debates about agency and responsibility, but key historical texts include Aristotle, The Nicomachean Ethics, translated by Robert C Bartlett and Susan D Collins (Chicago: University of Chicago Press, 2011); HLA Hart, The Concept of Law (Oxford University Press, 2012); Joel Feinberg, “Collective Responsibility,” The Journal of Philosophy 65, no. 21 (1968).

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agent (unless we disqualify her from this category because of some incapacity, like her being absolutely compelled to act, or her not being sane). Insofar as she acted, and acted for reasons, her agency cannot simply be conceptualized as the outcome of external causes.11 At the same time, when we are talking about actions like torture, we generally already appreciate that there was more behind the action than the free and autonomous choice of the individual who acted. Already in this relatively straightforward sense, we need to find a way of building supra-individual or external factors into the causal story, and linking them with the actors’ reasons. I will come back to this problem toward the end of this section when I try to integrate these subjective and objective dimensions, and again in Chapter 5, where I suggest some ontological frameworks that provide a more hospitable theoretical environment for mapping this type of complex casualty. The problem I want to spend some time with first, though, concerns the partiality of answers framed in terms of an agent’s reasons or motives for acting. That is, explaining why an agent acted in a particular manner by identifying the proximate motivation or reason might initially seem to provide a satisfactory answer, but it always leaves in the shadows a significant part of what would constitute a full causal story. This becomes evident if we imagine another scenario where an individual acts in a heinously violent way, but where we are likely to immediately search for supra-individual factors to explain her actions. Imagine a scenario where a mother inflicts extreme physical or psychological pain on her son. When we ask her why she did this, she tells us that money had disappeared from the wallet she left in the kitchen and that when she asked her son what happened, he refused to answer her questions. She goes on to explain that when she asked him where he or his sister had been during the afternoon when the money had gone missing, he also refused to answer. And so, she explained, because she needed to obtain information or a confession, she violently beat him and threatened that if he did not tell her what had happened, she would inflict even worse pain on his sister. Putting aside how we might feel about what she did, we would most likely find her explanation for why she acted as she did deeply unsatisfactory. That she needed to obtain information and that her son refused to provide it voluntarily just would not suffice as an explanation or, in more technical terms, it would not strike us as a sufficient cause. This example demonstrates how the answer that people typically give to questions about the causes of events or actions are for the most part highly 11

The key notion here, propounded most famously by Donald Davidson, is that built into the very definition of action is agency. See Donald Davidson, Essays on Actions and Events: Philosophical Essays (New York: Oxford University Press, 2001).

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partial – pointing to one particular factor while leaving obscure a range of other factors or conditions that are relevant to the event or action having occurred. When the partial answer that they give conforms to our expectations about what counts as a reasonable causal explanation, we generally do not push for a further explanation, and may not even notice the partiality of the answer. We feel no need for the other contributing factors to be filled in. Only when the explanation self-evidently fails to provide a satisfying causal story does the partiality (which is always there) become evident. Why, though, do we experience the same nominated cause for at least superficially very similar actions as a sufficient explanation in one case (police torture), but so patently insufficient in the other (the mother’s violence)?

(ii) Causes and Conditions Mindful of this problem, and of the fact that at times we are compelled to look beyond an immediate “cause,” philosophers of causality have drawn a distinction between factors that we might call “causes” and those that contributed to the event or action having occurred, but that in some way (yet to be specified) do not meet the criteria for constituting a cause, and that we might label “background conditions.” The physicist and philosopher of science David Bohm characterizes the distinction thus: The immediate causes may be defined as those which, when subjected to the changes that take place in a given context, will produce a significant change in the effects. The conditions may be defined as those factors which are necessary for the production of the results in question, but which do not change sufficiently in the context of interest to produce an appreciable change in the effects.”12

I will return to his reference to “the context of interest”, but for now, the critical point to draw from the distinction as he draws it is that what we call a cause has an acute quality, or stands out, and what we call a condition is more stable or constant. Thus, there is a difference, but neither the causes nor the conditions alone are sufficient for the phenomenon in which we are interested to occur.13 As Michael Scriven puts it, “a cause is a factor from 12

13

David Bohm, Causality and Chance in Modern Physics (London: Routledge and Kegan Paul Ltd., 1957), 9–10. It is not strictly correct to say that they are necessary, because usually another set of causes and conditions could also have caused the same phenomenon. It may be that within a particular combination, certain causes or conditions are necessary.

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a set of possible factors the presence of which (any one) is necessary in order that a set of conditions actually present be sufficient for the effect.”14 JL Mackie uses the example of a fire breaking out in a house to illustrate the distinction between cause and background condition.15 When experts investigate the fire, they come to the conclusion that it was caused by a short circuit at a certain place in the house. As Mackie points out, though, the short circuit is in fact (in Scriven’s terms) only one among a set of possible factors and not in itself sufficient to have caused the fire. Pointing to the short circuit, in other words, might provide a causal explanation that we find satisfying, but it does not provide a full causal story. Nor, importantly, does it necessarily provide a causal story that will be very useful in working out how to prevent fires in the future. For the fire to have broken out, a set of other conditions, both negative and positive, had to have been in place. These might include, for example, the presence of flammable material (a positive condition) and the absence of suitably placed sprinklers (a negative condition). These background conditions, “combined with the short circuit,” constitute the “complex condition that was sufficient for the house’s catching fire.”16 In this example, the appropriate place to draw a distinction between the cause (the short circuit) and the background conditions (the presence of flammable material and absence of sprinklers) seems clear enough, but when pushed, it becomes evident that it is not so easy to justify in absolute terms the selection of what is to count as a cause and what as a background condition. True, going back to Bohm’s definition, there was a definitive change in what we have called the cause (the short circuit occurred just before the fire broke out), but if we think back to my example of the mother, the factor that changed (the wallet disappeared and the son did not provide information) would not satisfy us as the cause, and we would insist that we looked for other causes. We would, in other words, demand that the distinction be pushed further back, even though it was the disappearance of the wallet and the need for information that changed. In this regard, John Stuart Mill provides the classical critique of the apparently objective character of this distinction, arguing that “nothing can better show the absence of any scientific ground for the distinction between the cause of a phenomenon and its conditions, than the capricious manner in which we select from among the conditions that which we choose to denominate the cause.”17 Indeed, the quote from

14 15 16 17

Michael Scriven, “The Structure of Science,” The Review of Metaphysics 17, no. 3 (1964): 408. John L Mackie, “Causes and Conditions,” American Philosophical Quarterly 2, no. 4 (1965). Ibid., 245. John Stuart Mill, A System of Logic (New York: Harper & Brothers, 1846), 198.

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David Bohm cited earlier continues: “The distinction between immediate causes and conditions is, however, an abstraction, useful for analysis, but not strictly correct. For background can always be changed, provided that conditions are altered sufficiently.”18 Let us come back, then, to the example of the mother and her son. If we were trying to understand how the terrible event occurred, or what made it possible that she ended up beating him for a suspected minor infraction,19 I suspect that we would quickly find ourselves in the territory of “background factors.” We might imagine a range of factors. In her own upbringing, extreme violence may have been habitually used against her and her siblings. In the broader community to which the family belongs, beating children for infractions may be what all parents do. Her extremely violent husband may have ordered her to beat the son if he broke any rules, and she was deeply afraid of her husband. The child may have been in and out of juvenile detention centers and the authorities and the broader family and community may have placed enormous pressure on the parents to discipline the child, given the risk of his facing far more dire consequences. In the state where they live, there may have been no laws that sanctioned against violence against children or if there were formal laws, no one took them seriously and they were rarely if ever enforced. Strictly speaking, because all of these were constants and did not change just before she beat him, they should count as background factors. In this case, though, it is highly unlikely that they would occur to us as background factors that receded and became invisible behind a sufficient cause (he did not answer the question). They would occur as precisely the types of factors we would want to explore. Irrespective of how we classify them, they would move from background to foreground in the causal story we felt that we needed to tell. What is becoming apparent, then, is that the distinction between what ought to count as a cause and what as a background condition, while broadly accepted and sometimes useful, is grounded more in convention and context than it is in some absolute or metaphysical truth. For philosophers following Mill’s critique, this makes the distinction capricious. We see this in David Lewis’ insistence that the basis for this distinction may be that we select “the abnormal or extraordinary causes, or those under human control, or those we 18 19

Bohm, Causality and Chance in Modern Physics, 10. Admittedly, the disappearance of her wallet may not have been minor at all, depending on what was at stake. One might imagine, for example, that she had in there the cash to cover rent, the loss of which would result in their eviction, or some other critical expenditure. Nevertheless, irrespective of the gravity of the loss, we would still generally consider her response to her son inexcusable.

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deem good or bad, or just those we want to talk about,” but that the principles of discrimination are “invidious.”20 I agree with these philosophers that we need to expose the absence of an absolute ground for the distinction, but disagree with their rejecting the distinction out of hand. Rather, I find more useful the pragmatic argument of the legal philosophers Hart and Honore´, who argue that just because the distinction lacks a metaphysical basis and is “responsive to the varying context of the particular occasions” does not mean it is “arbitrary or haphazard.”21 If we take this position, we open up several fruitful lines of inquiry: how do we habitually draw this distinction, or how ought we to draw it? Which conventions do we habitually use, or ought we to use to draw it? Hart and Honore´ suggest that we can locate two principal contrasts that underpin the distinction: “These are the contrasts between what is abnormal and what is normal in relation to any given thing or subject matter, and between a free deliberate action and all other conditions.”22 The first largely overlaps with Bohm’s definition, pointing to the presence of something that changes; but the second, introducing the notion of free will, adds something new. This is unsurprising, given that Bohm was talking about the physical world and Hart and Honore´ are talking about events in the social world and about human actions. With respect to the latter contrast, they seem to be suggesting, as I indicated in my initial examples, that only those factors that can be called free action (“she decided to hit him”) can qualify as causes (as the term is being used here). Do these two contrasts provide us with a reasonable basis for classifying some factors as causes and some as background conditions? We can answer that question in two quite different ways, each apposite to our larger inquiry. First, by tracing the processes we follow to work out what is to count as normal and what as abnormal, or what counts as free action, and what falls under “other conditions,” we can analyze how precisely these contrasts work. Tracing the processes that we already or normally use allows us to scrutinize those processes and call into question the automaticity with which we habitually adopt them, and thus opens the way to more reflective ways of drawing these distinctions. Second, we can think about how the way in which these contrasts are used to distinguish causes from conditions informs or should inform our preventative strategies. What, in other words, is the implication of counting as causes only those 20 21 22

David Lewis, Philosophical Papers, vol. 2 (Oxford: Oxford University Press, 1986), 162. HLA Hart and AM Honore´, Causation in the Law (Oxford: Clarendon Press, 1985), 11. Ibid., 33.

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factors that are “free action” or those that are “abnormal” for the types of prevention strategies we develop? Again, conducting this reflexive analysis allows us to call into question the way in which we may automatically import such distinctions into our ideas about how to prevent torture and opens the path to realigning our prevention strategies with the distinctions in a different manner. I shall deal with each briefly here, but they will continue to come up throughout this chapter and the next. With respect to the claim that we should count as causes only those factors that are abnormal with respect to the particular subject matter, and as conditions those that are normal, the first and most obvious problem is that such judgments about normalcy are themselves made from a particular perspective, and are highly contextual. In the case of torture, the effect of the context of judgment is likely to be particularly pronounced, because the divergence between the judgments that differently situated people make may well be great. Indeed, it is in part the disjuncture between what those who habitually use torture deem to be normal and what those who seek to prevent torture deem to be normal that makes the business of prevention so difficult. For example, for someone working in a remote, poorly resourced police station in the Global South, where violence may be an everyday means of norm enforcement, factors such as the pressure police personnel experience from their seniors or even the community to deliver confessions, or the violence that characterizes relationships between certain classes of people, or the fact that their superiors demand that they meet certain quotas of charges no matter what, may all seem quite normal – part of the background. For those who enter the scene coming from well-resourced, technologically advanced backgrounds where human rights norms are well entrenched, these factors may stand out as not normal at all. Because context gives rise to discrepancies concerning what counts as normal and what counts as abnormal, differently placed people will ask different questions and focus on different types of factors. Someone who operates in a context where torture is normalized might ask why this person (in particular) was tortured, especially if there is reason to expect that this person would not “normally” have been tortured (for example because they are from a higher class). To answer this question, they might then look for what stood out that led to this instance of torture. That torture occurs in general may not occur as a question that gives rise to identifying distinctively causal (i.e. abnormal) factors. For the human rights advocate coming in, that torture occurs at all, to anyone, needs to be explained by reference to causes that would then stand out as abnormal.

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In this regard, Mackie’s notion of the causal field can be useful.23 Whenever we ask a causal question, we are implicitly asking that question with reference to that part of the field that is up for examination. By way of example he suggests the question “What causes influenza?” We might ask this question in general (what causes influenza in all human beings?) or we might ask it with a view to explaining the development of the disease in particular individuals (why did J and K develop influenza but not L and M?). Once we narrow the question, what can count as a cause will also be significantly narrower because, as he puts it, the cause differentiates between those cases where the effect occurs and those where it does not. Those parts of the broader field, that is “anything that is part of the assumed (but commonly unstated) description of the field itself will . . . be automatically ruled out as a candidate for the role of cause.”24 So how we define the causal field will determine whether certain factors count as causes or conditions for the event or action occurring.25 In the influenza example, factors that would count as causes when we assume a broader causal field would become conditions once we narrow that field to inquire only about human beings living in conditions where influenza occurs. We might think of the way in which we specify the causal field as telescoping in or out, thereby including or excluding characteristics of the broader field from potentially falling within the categories of causes or conditions. At one end of the spectrum will lie characteristics of the field that clearly need to be placed in the deep background, for example, the physical laws of the universe or the fact that police are responsible for law enforcement; at the other end are aspects that will clearly fall within the range of possible causes (an order being given that a detainee be tortured). In between, we might imagine placing the lens at different apertures. Which aperture we adopt matters, because it will determine (often implicitly) where we look and what we leave out of our causal stories. This discussion would seem to return us to Mill’s rejection of there being any objective basis for distinguishing causes from conditions and thus of the viability of the distinction at all, or perhaps better to the pragmatic question of how best to draw the distinction. In other words, the need for a justification of the distinction between causes and conditions has now been pushed back to the need for a justification for the distinction between normal and 23

24 25

Mackie notes that the first use of the term was by John Anderson in John Anderson, “The Problem of Causality,” Australasian Journal of Psychology and Philosophy 16, no. 2 (1938). John L Mackie, The Cement of the Universe (London: Oxford University Press, 1974), 35. Mackie, “Causes and Conditions,” 248–52.

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abnormal. How, then, do we decide the best way to draw that distinction? If we cannot base the answer on any absolute standards, we might answer it pragmatically, asking what the best way to draw it would be in relation to a particular end we have in mind. An example that Hackman gives in his discussion of conditions and causes is illustrative. He notes that in tort law, the distinction between causes and conditions was initially made, but then abandoned because the objective of tort law is to apportion blame and this requires identifying causal agents, rendering conditions irrelevant.26 As he puts it, the conditions dimension was dropped from the analysis because it was inconsistent with the system purposes (and not because there were no conditions to the wrongs under investigation). It was not the case that conditions did not matter in general, or that certain conditions were not necessary for the production of the harms under analysis, but for the legal purposes of attributing blame and awarding damages, those conditions were not relevant. Hackman provides a number of other examples in different fields to illustrate the distinction between causes and conditions and the way that it is possible to telescope in or out in one’s approach, and these well illustrate the relationship between the relative attention paid to causes and conditions and what purpose one has in mind. They also illustrate the degree to which one’s attention to causes or conditions is shaped by one’s theoretical orientation. So, for example, in the field of medicine one might focus in on immediate causes of a disease, such as exposure to an infection, and then treat this through antibiotics; or one might broaden the lens to consider the contributing role of conditions such as diet, living conditions, or even public infrastructure. Similarly, in the field of child development, a focus on causes would support an approach that used operant techniques that would push development in one way or another, whereas an approach that emphasized conditions would place a greater emphasis on creating a particular type of environment most conducive to the child’s autonomous development. In each case, neither approach is wrong (or incapable of being justified). Rather, they reflect different professional concerns, different types of objectives, and different theoretical orientations. The examples also illuminate the overlap between the distinction between causes and conditions and the distinction between the different levels of prevention discussed in Chapter 1. Primary and secondary forms of prevention would align with an emphasis on conditions, whereas tertiary prevention would align with an emphasis on causes. 26

J Richard Hackman, “From Causes to Conditions in Group Research,” Journal of Organizational Behavior 33, no. 3 (2012): 436.

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Recognizing the link between the relative emphasis on causes or conditions and the system objective is vital in the context of thinking about preventing torture, because it makes evident the importance of explicitly asking what system objective is best served by different types of emphases, or different apertures on the causal field. Thus, comparing the system objective of torture prevention with the system objective of tort law, one might argue that whereas in the latter case, the purpose of apportioning blame counsels a narrowing of the causal field, for the purpose of working out how to prevent the behavior, attending to conditions may well be equally, if not more important, and as such, one ought to broaden the causal field. The same might be said about the difference between the system purpose of punishment, or retributive justice for torture, and the system purpose of preventing torture. I would argue that our tendency to conflate the two, and thus to look to the same strategy to serve two different system purposes, has clouded analyses of how best to prevent torture. The house fire example provides a clear illustration. Although the cause was identified as the short circuit, most likely, government authorities, builders, and homeowners looking to prevent fires in the future are more likely to pay attention to the materials out of which houses are built and installing sprinklers. This then takes us to the second perspective that I suggested we needed to bring to the analysis of the distinction between causes and conditions. The specific purpose of preventing torture, as distinct from the purpose of bringing retribution (to perpetrators) or reparation (for victims), may require a different type of balance between causes and conditions than these other enterprises and, indeed, one that emphasizes the importance of attending to conditions. From an abstract perspective, one might argue that how one draws the distinction does not matter all that much, because only when combined are conditions and causes sufficient for the production of a certain effect. In other words, as I have argued, even as we generally talk about a cause, it is commonly, albeit implicitly understood that the cause is not itself a sufficient explanation. The problem with this abstract argument is that even if, on careful analysis, the necessity of the conditions becomes apparent, in our ordinary assessments of the causes of phenomena, the contribution of conditions to the causal story does in fact recede from awareness. We tend to forget about them, discount them, and downgrade them. The distinction is not innocent. There is a hierarchy between what we count as a cause and what we count (and even then only when pressed) as a condition. But if the contributory role of conditions is critical to the production of the phenomenon, torture in our case, then bringing conditions into the foreground and

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according them the status we normally reserve for causes will be critically important to our achieving our system purpose of prevention. Turning now to the distinction between free or deliberate action and what Hart and Honore´ simply call “other factors,” again, my starting point would be to trouble this distinction. Indeed, it is precisely the possibility of cleanly distinguishing between what counts as a free and deliberate action and “other factors” that the body of literature on situational violence that will be discussed in this chapter, and the social theories concerning agency and structure that will be discussed in Chapter 5, call into question. For now, suffice to say that the position I will be arguing is that human action, even where apparently free and deliberate, that is, when not coerced, is always shaped by factors that go beyond the individual agent. Such factors include what we might think of as “external” situational factors such as the organizational, legal, or political environment within which that individual is judging, deciding, and acting. They also include factors that transcend the individual as an autonomous source of action, but act through their subjectivity, these being the systems of meaning, discourses, or hermeneutic frames through which they make sense of the world and decide what types of actions are appropriate. Insofar as these systems of meaning are necessarily intersubjective, and individuals are interpolated into them, even their free actions are colored by what we would have to classify as “other factors.” Because we always assess the meaning and the rightness or our actions through hermeneutic frames that are not of our own making (or at least never entirely so), our judgments and actions always bear the trace of what cannot be called fully autonomous. One implication of this argument is that the very distinction between “freely chosen” and “other factors” does not fully hold up, and so cannot underpin the distinction between causes and conditions, at least with respect to phenomena in the social world (I leave to the side whether this also applies to the physical world that is the object of the hard sciences). This is because any apparent cause (accorded this status because it is the freely chosen action of an individual) is always already embedded in, and not fully separable from, “other factors,” and so is grounded in conditions. This does not mean that we cannot continue speaking sensibly about free actions and other factors, or about causes and conditions, but rather that we need to understand how they are imbricated. A deeper implication, and one perhaps more directly relevant to our purpose, is that this argument means that even if we only include the freely chosen acts of individuals in what we are willing to count as the causes of torture, any thoroughgoing attempt to alter the causal sequence so as to bring about a different outcome ought also to attend to the conditions within which those causes occur. None of this means we cannot hold individuals

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responsible for the views and values that they hold, or the objectives they seek to achieve. Nor does it mean that we cease to have good reasons for punishing individuals for taking certain actions. It rather means that a full understanding of the etiology of their objectives, views, and values requires attending to the intersubjective, material, and institutional world within which they developed them. This is particularly relevant if we are talking about objectives, beliefs, and values that are widespread within their context and that normalize a violation, such as beliefs about the acceptability of torture when used against certain types of people.

(iii) Mapping the Relationship between Causes and Conditions From the foregoing, it follows that if we are to understand why torture occurs, or if we are to identify the necessary and sufficient conditions for torture occurring, we need to include in our causal story not only those factors that, using the set of distinctions discussed in Section 2(ii), I called causes, but also those I called conditions. The specific way in which we draw the distinction between these two types of factors does not, however, have a metaphysical basis, but will depend on the context of our analysis and the type of questions we are asking, and ought to be influenced by what we are seeking to achieve. Nevertheless, there remains a real sense in which different types of factors operate at different levels or registers. As such, to construct a thorough and coherent causal story that can form the basis for developing a strategy that will address these different dimensions of causality, we need some way of understanding the relationship between them. How might we do this? One common approach has been to speak about “root causes.” So, for example, in recent years in the field of human rights, we have seen an increasing interest in understanding the background factors or conditions that underpin violations, and this work most commonly takes place under the banner of “a root cause analysis.”27 Indeed, when I commenced the project that forms the background to this book, I understood what I was doing as trying to identify and then target the “root causes of torture.” The term initially seems useful, insofar as it correctly directs our attention beyond the immediate or 27

See, for example, McCarthy, Attacking the Root Causes of Torture; Miloon Kothari, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living (Geneva: United Nations, 2005); Gulnara Shahinian, Report of the Special Rapporteur on Contemporary Forms of Slavery, Including Its Causes and Consequences, Mission to Peru (Geneva: United Nations, 2011); United Nations High Commissioner for Human Rights, Summary Report on the Panel Discussion on Preventing and Eliminating Child, Early and Forced Marriage (Geneva: United Nations, 2014).

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proximate causes to more remote or contextual factors. If we think of this move geometrically, it would appear to have the advantage of taking us beyond a simple horizontal model (A ➔ B), by adding a vertical dimension (C ➔ B). The problem is that importing the metaphor of “roots” sustains a linear relationship between different factors, implying that to explain one cause, we might move down to the causes below, as if we had a chain of causes moving from the deepest and most remote to the shallowest and most immediate. This surely misrepresents, or fails to capture, the far more complex relationships that exist between the different types of factors that, as I have explained, may not be in a causal relationship with each other at all. A cognate difficulty has long been evident in debates within the social sciences about how to explain the relationship between idealist and materialist explanations of historical change, or agency-oriented and structural explanations of social phenomena. Such debates traditionally took the form of each side agreeing that the two terms in question formed a dichotomous description of the world (structures and agents, for example), but disagreeing about which had ontological and thus explanatory primacy. Depending on one’s theoretical orientation, one might, as in classical Marxism, contend that the material base gives rise to certain ideas, subject positions, or frames of interpretation, and that while these latter seem to provide individuals with their reasons for action, they are merely epiphenomenal or illusory causes, effects of the real or root cause, which is the structure of economic relations. Or, in older debates about whether social phenomena are best understood as the outcome of the choices of agents or the operation of structures, again depending on one’s starting point, one might argue that agents create structures, which then cause social outcomes, or that structures construct people as particular types of agents, who then seem to create social phenomena.28 Despite their evident differences, all of these types of theories adopted vertical or depth models, and sought to unmask those phenomena that we thought were causes, thereby revealing them to be the effects of other causes. As a response to these debates about the primacy of agency or structure, or materialism and idealism, a common theoretical move has been to refuse the dualistic thinking that establishes the field as one divided into two types of forces and the linear logic that seems to determine the type of solutions on offer. In their (often very) different ways, these theoretical moves (sometimes called third-way or practice approaches) refuse to map the apparently 28

This tension will be explored in detail here but for a treatment of the problem in sociology see Anthony Giddens, The Constitution of Society: Outline of the Theory of Structuration (Berkeley, CA: University of California Press, 1984).

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polarized terms as a dichotomy that splits the field of reality, and then go on to suggest different ways of remapping the terms so that we are not forced to explain one as the effect of the other.29 In Chapter 5, when I come to consider what it is about human rights approaches that might have led to a greater emphasis on agency-based explanations for violations, I will spend some time discussing some of these theories and explaining how they might offer us a way out of the choice between agent-centric or structural explanations. For now though, what we can draw from this brief theoretical foray is the lesson that we are in trouble as soon as we try to understand the relationship between these different causal factors using a linear model of causality, where one reified factor would need to be the cause of another, which would be the former’s effect. Indeed, even though we have recognized that we need to build conditions into the causal story, to speak about conditions as causing a phenomenon (for example the presence of flammable material caused the house fire), or causing the cause, is already misleading. As I noted in Section 2(i), it is of obvious and critical importance here that when we speak about torture we are speaking about the actions of human beings and not the behavior of “things” or physical phenomena. Thus, although it would make sense to say “the rock tumbled into the creek because the tree on which it was leaning became uprooted in the storm,” we could not say (by analogy), “the guard tortured the prisoner because there was a quota for people charged with crimes.” Indeed, we should not strictly say that the guard tortured the prisoner because his superior ordered him to, without allowing that the guard himself then decided to obey the order, even if he was doing so within constrained options. It is because we recognize that human agents always play some active role in determining their own actions that the appeal to higher orders came to be rejected as a legitimate defense for torture and other grave violations of human rights.30 Recall that at the outset of this

29

30

Some of the theories that would fall under this description include those of Pierre Bourdieu (discussed in detail in Chapter 5) and Anthony Giddens (ibid.) in sociology; Sherry Ortner in anthropology (see Ortner, “Theory in Anthropology Since the Sixties”); and Cornelius Castoriadis in philosophy (see Cornelius Castoriadis, The Imaginary Institution of Society, translated by Kathleen Blamey [Cambridge, MA: MIT Press, 1998]). Recognition of the agency of the immediate perpetrator of a violation is what gave rise to the Nuremburg principle that superior orders do not constitute a defense and, notably, Article 2(3) of the UNCAT provides that “An order from a superior officer or a public authority may not be invoked as a justification of torture.” At the same time, the limit of attending only to this site of agency underpins the doctrine of command responsibility. For interesting discussions of these two principles and their tensions see Allison Marston Danner and Jenny S Martinez, “Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law,” California Law Review 93, no. 1 (2005); Yoram Dinstein,

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discussion, I noted that one of the problems with speaking about the actions of agents in causal terms is that doing so elides an important difference between causes and reasons. Any causal analysis where human action is a factor needs to recognize the role that agency or choice plays in bringing about the outcome. Now, if we stay with the second contrast that Hart and Honore´ used to distinguish between causes and conditions (the contrast between free or deliberate actions and other factors), we might conclude that the only real cause of torture (the action) is the free choice or intention of the individual who committed torture. Why did police officer A torture detainee X? Because he chose to torture him. He might have had a reason for making this choice – for example, he chose to torture him because he wanted to get information – but reasons cannot be thought of as factors that cause something to happen in a deterministic manner. Providing a reason as a cause for a free action is somewhat oxymoronic. Giving reasons is part of what it means to act freely. In any case, appealing to the choice of the agent, or to the reasons that the agent had, or to the reasons of the secondary agent who gave an order to the primary agent, will not really satisfy us, because, as I have said, torture is not simply the outcome of individual choices, as if once we had nailed these, we could stop there. Were we to pursue the reasons an agent gave for his choices, these reasons would lead not only to other agents (who gave orders, for example) but almost always to other reasons, which are themselves embedded in structures that transcend the individual. For example, if we ask why police sergeant A wanted information, we might eventually come up with something like “because the police station where he works has a quota of charges that it needs to meet, and police officers cannot press charges without information or a confession. So sergeant A used torture to obtain information or a confession.” As I said, though, jumping in the other direction, it would be incorrect to say that sergeant A’s choice was determined or caused by the presence of a quota for charges. The whole idea of saying that something is a choice is to distinguish it from a point in a mechanical chain of causes and effects; but this need not mean that it is a self-causing cause. So we are going to need to find other ways of talking about the relationship between an action that an individual agent takes (A tortured X) and the different types of factors that need to be built into the causal story. The specific way in which this ought to be done will unfold through this chapter and Chapter 4 as we begin to work through the types of situational factors or conditions that are relevant in understanding what causes and The Defence Of “Obedience to Superior Orders” in International Law (Oxford: Oxford University Press, 2012).

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sustains torture (in general and in particular contexts). For now, though, I want to say a few words about the types of concepts (and hence words) that we might use to link conditions or situational factors with the outcome of torture, and about the broad theoretical model that I will adopt for organizing these different dimensions of causality. The concepts that will do the job of linking conditions with the action of torture need to fulfil two criteria. They need to show that the condition makes a contribution to the outcome; and at the same time, they need to make space for the agency of the individual who acts. The types of connecting concepts I would suggest would fulfil these criteria are ones that indicate influence, but not determination. We also want a range of such concepts, reflective of the range of different types of influences that might be at work. Nigel Rodley pointed in the right direction when he used the term “crime of opportunity,” but we need to expand the repertoire of enabling concepts. Concepts such as “normalize,” “legitimize,” “create a permissive environment for,” “incentivize,” “authorize,” and “facilitate” fulfil both criteria; they indicate that the condition in question alters the environment in which a choice is made, thereby shifting what is at stake in that choice, or influencing the values that an agent will draw on when they come to make a judgment, or shaping the meaning of the phenomena that they are judging. At the same time, in each instance, they are still judging and acting. But the judgment never takes place in a neutral environment, or one that the individual creates, and it is these factors that give shape to that environment. This way of thinking about the relationship between conditions and the action of an agent also suggests a broad conceptual framework or model within which we might locate the different dimensions of what I am calling the causal story. Known as a multisystemic or an ecological model, this framework, most frequently used in the field of public health, locates an individual agent within a broader ecosystem comprising the different spheres of the social and political world, including the individual, the family, the peer group, the organization, the culture, the legal system, the political system, and the ideological context. When one adopts a multisystemic or ecological conceptual approach, one does not simply explain a violation by looking at what is happening at one level, for example, by examining the cultural values or the type of legal regulations that are in place. Rather, ecological or multisystemic models recognize that there are different dimensions of influence or causation, that these different spheres are interrelated, and that we can only understand how individuals behave by examining interactions between those individuals

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and their environments as well as between different dimensions of the environment.31 Urie Bronfenbrenner is credited with developing the ecological systems theory from which this model is drawn, originally to help him make sense of the way in which a broad range of factors impact child development.32 Importantly, his model did not simply allow for dyadic relationships between the different spheres of the environment and the developing child, but also recognized that the spheres interact. In practical terms, Bronfenbrenner’s model tells us that a person’s behavior is strongly influenced and shaped by their relationships at all levels of their social environment. Figure 3.1 (p. 105) shows his original model. As with any model that seeks to map something as ontologically complex as social reality, this one is imperfect, perhaps implying, for example, that different conditions or factors sit within distinct spheres of life and that these in turn might be organized according to how proximate or remote they are from the individual. A more accurate representation would need to be three dimensional.33 Nevertheless, and especially if we can imagine greater dimensionality and dynamism, the model does make space for complex and multiple interactions between and across situational factors and avoids the linearity I was earlier criticizing. Moreover, it is not simply concerned with analyzing or explaining the causes of actions, but provides a useful guide for working out where, within this multidimensional space, an intervention ought to be targeted and imagining how different types of strategies that are targeted within different dimensions might interact. Indeed, in the field of public health, where this conceptual approach has been most comprehensively taken up, research on what makes a prevention program effective indicates 31

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A Quadara and L Wall, What Is Effective Primary Prevention in Sexual Assault?: Translating the Evidence for Action (Melbourne: Australian Centre for the Study of Sexual Assault, Australian Institute of Family Studies, 2012). U Bronfenbrenner, Ecological Systems Theory (London: Jessica Kingsley Publishers, 1992). Another qualification, which undoubtedly merits more than a footnote, is that ecological or systems theories might imply the type of totalizing that has been the object of much critique from feminist scholars like Donna Haraway or Anna Tsing. Following their lead, I might rather have used the frame of heterogeneous assemblages, tangles, or patches. I do not use these frameworks, in part because the ecological model is principally used as a diagnostic tool, and also because in the case of security sector organizations, it is the systemic or totalizing dimensions that are most important for understanding the normalization and facilitation of torture. Nevertheless, one might think of the heterogeneity or unevenness as creating the spaces for change. See Donna J Haraway, Staying with the Trouble: Making Kin in the Chthulucene (Durham, NC: Duke University Press, 2016); Anna Tsing, “Earth Stalked by Man,” Cambridge Journal of Anthropology 34, no. 1 (2016).

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that addressing factors at different levels of the system is critical to effectiveness.34 Obviously, though, for the model to be useful for illuminating what is going on with respect to a specific phenomenon, we need to fill out the details by attending to the types of conditions or situational factors that are at work. The model can guide us to where we might look, but it will not tell us what is to be found there. In the remainder of this chapter, I look at the body of research that led to the development of the view that institutional violence, or violence committed in institutional contexts, needs to be understood against the background of a range of situational factors. The chapter also sets out what we know about the institutional conditions that produce violence, establishing the types of factors that we might look for when it comes to particular situations. In the following chapter and with this framework in hand, I will then turn to look at empirical studies, including our own research in Sri Lanka and Nepal, on the use of torture in contexts where it is systematic and normalized.

3 THE SITUATIONAL HYPOTHESIS FOR INSTITUTIONAL VIOLENCE

(i) Ordinary People and Extraordinary Violence Torture is not simply an act of violence committed by an individual in his or her private capacity, but is, by definition, a type of violence committed in an institutional context. Moreover, the class of torture in which I am most interested in this book is torture that occurs systematically or that forms part of the routine practice of a security organization. For this reason, I commence by looking at what we have come to understand about why institutional violence occurs. It was in the wake of the genocide in Europe during World War II, and in response to the images and stories of brutality and violence that emerged from the Nazi concentration camps, that researchers became exercised by the question of how such inhuman behavior could have occurred on such a massive scale. At issue was not simply the gravity of the crimes, but also, given the scale of those crimes and the involvement of the masses in their commission, how such large numbers of apparently ordinary people could, under certain conditions, commit acts that would generally have been considered beyond the pale of ordinary morality. Initially, and consistent with the 34

Nation et al., What Works in Prevention.

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prominence of “internalistic” (especially psychodynamic) psychological theories, the dominant understanding was that personality was the principal determinant of behavior and, more specifically, that what explained people’s proclivity to perform the acts of violence as had been seen during the Shoah was their “authoritarian personality type.”35 Indeed, when he began his now famous electric shock experiments, Milgram claimed that he was largely motivated by his refusal to accept the lay version of the situational hypothesis of the time – “I was just following orders” – and wanted to find out what it was about some people that led them to go along with such extreme acts of violence. After conducting those experiments, Milgram came to a very different view, which well captures the “situational hypothesis”: The disposition a person brings to an experiment is probably less important a cause of his behavior than most readers assume. For the social psychology of this century reveals a major lesson: it is not so much the kind of person a man is as it is the situation in which he finds himself that determines how he will act.36

When he went on to claim that “if a system of death camps were set up in the United States of the sort we had seen in Nazi Germany, one would be able to find sufficient personnel for those camps in any medium-sized American town,”37 Milgram was not simply rejecting a racialized interpretation of evil and violence; he was stripping the individual human being of yet another distinguishing quality (the first being personality) that would seem to differentiate them and explain why they (and not others) could commit atrocities. Since Milgram drew these conclusions, the balance has swung back in the other direction, with most people now accepting that behavior needs to be understood with reference to both personality and situation, and, indeed, that the two should not be seen as competing poles, but in an interactive relationship.38 Nevertheless, the work of Milgram and a number of other 35

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The most important text in this regard was Theodor W Adorno et al., The Authoritarian Personality (New York: Wiley, 1950). Stanley Milgram, Obedience to Authority: An Experimental View, Ist edn. (New York: Harper & Row, 1974), 205. For a discussion of how the shift from the internal to the social that we see in Milgram belonged to a broader shift in social theory and politics, see Ludy T Benjamin Jr and Jeffry A Simpson, “The Power of the Situation: The Impact of Milgram’s Obedience Studies on Personality and Social Psychology,” American Psychologist 64, no. 1 (2009). CBS News, Transcript of Sixty Minutes Segment, “I Was Only Following Orders” (March 31) (New York: CBS, 1979). For a review of the post-Milgram studies and their contribution to an interactionist view, see Thomas Blass, “Understanding Behavior in the Milgram Obedience Experiment: The Role of Personality, Situations, and Their Interactions,” Journal of Personality and Social Psychology 60, no. 3 (1991). On the interactionist paradigm, David Magnusson, Norman S Endler, and

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experimental researchers in the second half of the twentieth century that underpinned this turn to situational factors remains critical to our understanding of the etiology of institutional violence.39 I describe these experimental findings in some detail and, where appropriate, explain their relevance for understanding and preventing torture. The basic scenario of Milgram’s experiments involved an authority figure instructing a volunteer subject to successively administer electric shocks of increasing intensity to a person who was placed in another room. The subject was led to believe that this third person was receiving shocks as a way of improving their learning. In fact, the “learner” was an accomplice to the experiment and no actual shocks were administered. Nevertheless, the subject heard them reacting – sometimes with screams – to each shock that the subject believed they were administering. The overall finding of the studies was that, in the standard experimental condition, in response to gradually more authoritative commands, 65 percent of subjects were willing to raise the voltage to what they believed to be a dangerous 450-volt limit, despite the actor/test-taker’s screams and pleas to quit the experiment. Importantly from our point of view, Milgram was not simply interested in finding out whether people who showed no sign of having pathological personalities would follow orders to commit violent acts. He also wanted to discover what types of considerations increased or decreased the likelihood of such obedience. To do so, he varied the experimental conditions to manipulate the independent variables he thought might be important. For example, subjects received different types of instructions and, specifically, the explanation of why the shocks were being administered was varied; so, for example, sometimes the scenario was framed as helping the learner and at other times as punishing

39

Henry A Alker, Personality at the Crossroads: Current Issues in Interactional Psychology (Hillsdale, NJ: Lawrence Erlbaum Associates, 1977). The Milgram experiments have been subject to considerable controversy, most surrounding the ethics of the research, but some also questioning the validity of his conclusions. In her 2013 book, Behind the Shock Machine: The Untold Story of the Notorious Milgram Psychology Experiments (Melbourne: Scribe), Gina Perry claimed that her archival research and interviews with those involved in the original experiments called into question the validity of Milgram’s conclusions. Specifically, she claimed that in many cases, the procedure he had set out, whereby subjects who refused or resisted were given four standard counter-prompts, had not been followed and in fact means of coaxing them to stay had been employed. She also claimed to have found evidence that most subjects had been aware that they were taking part in an experiment. Reviewing 35 years of experimental findings post-Milgram, however, Thomas Blass finds significant variation in the rates of obedience (between 28% and 91% compared with Milgram’s 65%) but in general experimental confirmation of his findings. Thomas Blass, “The Milgram Paradigm after 35 Years: Some Things We Now Know about Obedience to Authority,” Journal of Applied Social Psychology 29, no. 5 (1999).

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them. The qualities and characteristics of the authority figure were varied to make them appear more or less authoritative or expert (and/or to alter their gender), and similarly, the qualities or characteristics of the imagined “victims” were varied. For example, they might be made to appear or described in ways that made them seem more or less like the subject, or given attributes that the subject might find admirable or deplorable. In other variations, the subject was placed at different levels of proximity to the authority figure or to the victim: in some cases they were quite remote, hearing only sounds made against the wall; in other cases they were in the same room and the subject actually had to place the learner’s hand on the shock pad. In some conditions there was more than one authority figure, with a variation introduced where authority figures disagreed with each other over the instructions. In other variations, the subject was able to witness others in a similar position, either obeying the instructions or refusing to administer shocks. The results of the basic experiment, supplemented by results from the variations in the experimental conditions, furnished a wealth of information about the conditions under which individuals will undertake acts that they would otherwise deem wrong or unethical. For our purposes, the most important findings concern the specific variables that affect the likelihood of obedience to unethical orders. Subjects are more obedient where the authority figure adopts an official identity that the subject views as authoritative, for example wearing a white lab coat and being called “professor.” Correlatively, if the authority figure is in some way diminished or there is dissent among those giving the instructions, levels of obedience decline. Subjects’ obedience to instructions is increased where the person on whom the act is being inflicted is described in negative terms or belongs to a stigmatized group (within the specific social context). Obedience is also enhanced when the task is described in positive terms or justified by a higher purpose, say helping someone to learn. Levels of obedience also varied significantly with the proximity of the “victim,” with almost total obedience to instructions where they were neither seen nor heard, and obedience dropping to 30 percent where the subject was asked to place the victim’s hand on the electrode. Particularly importantly for our purposes, the actions of another (dummy) “subject” (witnessed by the first actual subject) had a highly significant effect. Where the subject witnessed someone else obeying instructions, obedience increased, but where they witnessed another person refusing to obey the instructions, they almost always also refused to obey.40 40

As Hogg and Vaughan put it, “Supporters, dissenters and deviates appear to be helpful in reducing conformity because they break the unanimity of the majority and thus raise or legitimize the possibility of alternative ways of responding or behaving.” Michael A Hogg and

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The experiment also demonstrated the impact of how the basic situation was set up. Situations that seemed to be based on a set of established rules that provide the appearance of rationality and order were more conducive to obedience. The efficacy of such rules in binding subjects’ obedience is enhanced by their being associated with an authority figure recognized as legitimate. It is also enhanced where the subject enters into some type of contract where he or she seems to become a party to agreeing to those rules, even where this consists of a fairly informal verbal agreement. Another characteristic of the situation that facilitates ultimate obedience to clearly unethical acts is what is known as the “foot-in-the-door technique,” in which people are initially asked to commit to or agree to take small, seemingly insignificant actions, gradually leading to more extreme acts.41 Finally, and again importantly for thinking about torture, the diffusion of responsibility, and more specifically, communicating that the individuals who actually take unethical actions will not be held responsible for negative consequences, increases their willingness to obey. The other widely cited study of this group of experiments was Phil Zimbardo’s Stanford prison simulation.42 Zimbardo’s objective was to observe how “ordinary” subjects would behave when placed in a situation simulating a closed institution, specifically a prison. Volunteers were recruited from the local population and screened to exclude anyone who had prior psychological problems, medical disabilities, or a history of crime or drug abuse. The remaining twentyfour volunteers were divided by the flip of a coin into two groups and allocated roles as guards or prisoners. The members of the prisoner group were unexpectedly confronted in their own homes when the city police conducted mock arrests, blindfolded them, and took them to a simulated prison built under the psychology labs at Stanford University. There the (mock) “warden” received them, admonished them for their crimes, and introduced them to their new status as prisoners. After being stripped naked and deloused, they were allocated a stocking

41

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Graham Vaughan, Social Psychology: An Introduction, 2nd edn. (Hemel Hempstead: Prentice Hall, 1998), 218. Jonathan L Freedman and Scott C Fraser, “Compliance without Pressure: The Foot-in-theDoor Technique,” Journal of Personality and Social Psychology 4, no. 2 (1966). A related phenomenon is the psychology of “sunk costs,” where initial investments of time, money, or effort, even if leading to negative outcomes, increase the tendency to continue. Hal R Arkes and Catherine Blumer, “The Psychology of Sunk Cost,” Organizational Behavior and Human Decision Processes 35, no. 1 (1985). Philip G Zimbardo, Christina Maslach, and Craig Haney, “Reflections on the Stanford Prison Experiment: Genesis, Transformations, Consequences,” in Obedience to Authority: Current Perspectives on the Milgram Paradigm, edited by Thomas Blass (Mahwah, NJ: Lawrence Erlbaum, 2000). For a review see also Zimbardo, The Lucifer Effect.

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cap to simulate shaved heads and smocks marked with an identification number as uniforms, and a bolted chain was placed around their right foot. The guards were dressed in identical khaki uniforms, wore mirror sunglasses, and were given clubs. Beyond general instructions to ensure that law and order was maintained and to command the respect of prisoners in the face of a potentially dangerous situation, guards were given little other guidance but were allowed to behave “spontaneously.” What transpired over the following days bore a remarkable resemblance to some of the typical dynamics of violence in actual closed institutions such as prisons. To illustrate, at 2.30 AM on the first night, guards woke the prisoners with whistles and demanded their attendance at the first of what were to become numerous random counts. When, on the second day, the prisoners staged a rebellion, the guards drastically increased the severity and arbitrariness of their discipline. This included destructive raids of cells, stripping prisoners naked, improvising random, humiliating forms of discipline, and devising means for setting prisoners against each other. At different points of the experiment prisoners had extreme psychological reactions, including withdrawing, breaking down, and adopting submissive and conformist behavior. After five days, the experiment was prematurely discontinued when Christina Maslach, a fellow junior psychology academic (and Zimbardo’s then partner and later wife), confronted Zimbardo with her horror at what was going on, and demanded that he call the experiment off.43 The Stanford prison experiment again poignantly demonstrated the extent to which situational factors can affect, or perhaps more accurately shape, individuals’ behaviors. It powerfully illustrated the difficulty that individuals can have in stepping out of, or challenging, the roles that they are assigned, especially when others around them are conforming to the expectations of those roles. For example, subsequent research indicated that when some guards behaved sadistically even the “good” guards felt helpless to intervene. Indeed, even in the face of explicit and extreme abuse of the prisoners, not a single guard quit, despite their private misgivings about what was happening. Zimbardo and his colleagues concluded that several factors were at work in the dissolution of the guards’ sense of ethical responsibility. Building on the conclusion I noted concerning the effect of an apparently rule-governed, or quasi-legalistic situation, they also noted that where those rules that were provided were vague, they could be used arbitrarily and impersonally to justify compliance, particularly (and ironically) because “rules are rules” and must 43

See Christina Maslach’s reflections in Zimbardo, Maslach, and Haney, “Reflections on the Stanford Prison Experiment”, 216–20.

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be followed. Again, where an authority figure conveyed that he or she would take responsibility for anything that might happen, this led to a diffusion of responsibility and more latitude in abusive behavior. Where the harsh treatment was justified by an ideology, people were more likely to comply, and they were less likely to walk away if they perceived the exit costs as being high. The researchers also again observed that the abuse began with small, seemingly insignificant first steps and gradually increased toward more extreme levels. Perhaps more surprisingly, they also found that boredom and the absence of avenues for creativity were factors relevant to understanding the sadistic behaviors.44 Because of the nature of their particular concerns, both experiments tend to draw our attention primarily to the organizational factors, or those aspects of the situation that concern the immediate environment in which the subjects were operating, and their effect on how subjects acted. Nevertheless, this immediate organizational environment was also shaped (albeit implicitly) by a particular type of legal (or in this case regulatory) environment, and as such, a full situational analysis ought to include the nature of these laws or regulations. In both experiments, then, we might note the complete absence of sanctions for the actions subjects took. The subjects were placed in environments where they were asked, or allowed, to commit acts in the absence of any threat of punishment or other form of direct accountability for the consequences of their acts. In the Stanford prison experiment, there were rules, but they were rules that the guards were empowered to interpret and enforce, not rules to which they would themselves be subject. For the guards, the environment was effectively one of apparent impunity. In the Milgram experiments, there were no material consequences at all, although subjects were operating within the context of the presence of an authority figure to be pleased or defied. In this regard, and as I suggested in Chapter 1, the impact of laws making torture a punishable offense, and more broadly of normative environments condemning torture, ought to be understood as acting both at the individual level (as a form of deterrence or retribution) and as a type of system response. More broadly, the implicit impact of the regulatory or legal environment reminds us that situational factors always operate on multiple and interacting dimensions, even if our particular concerns tend to draw attention to only some of these.

44

A former Israeli soldier candidly discussing the practice of detaining and harassing Palestinians at border crossings similarly remarked that one of the reasons she and her peers behaved in this way was sheer boredom. See Breaking the Silence, “Because I’m Bored,” Video catalog number: 50422, www.breakingthesilence.org.il/testimonies/videos/50422.

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(ii) The Dynamics of Compliance: Obedience and Conformity Beyond these two experiments, now well etched in the popular imagination, a range of other researchers explored more specific aspects of the conditions under which individuals come to act in ways that would seem to contravene their own, or generalized, ethical values.45 In doing so, they distinguished between two types of forces that were relatively undifferentiated in my description of the Milgram and Zimbardo experiments, though present in each. The first is obedience, which we might think of as a vertical dynamic where individuals follow orders, or perhaps less explicit directives, given by their superiors or those they perceive to be authority figures. The second is conformity, which we might think of as a horizontal dynamic, where individuals align their behaviors with the actions of their peers. The question these experiments sought to answer concerned the characteristics of situations that were conducive to obedience and conformity, as well as the characteristics of the figures whom individuals obey, or with whose behaviors and values they conform.46 There is now a large body of literature confirming early findings that when placed in groups where everyone else is affirming a particular state of affairs, people are highly likely to agree, even where it is obvious to them that what they are affirming is incorrect. The classical experiment in this regard was Asch’s parallel line test, where subjects were asked to judge whether two lines were parallel (a judgment that is relatively easy to make for most sighted people) in the presence of others affirming the incorrect choice. Asch’s finding – that most subjects agreed some or most of the time with an obviously erroneous judgment that was affirmed by all others – has been consistently and

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At this point, I bracket questions concerning the status of these “generalized ethical values.” In much of this literature it seems to be assumed that the acts of violence under consideration are unquestionable violations of norms that we would expect all people to comply with. The working assumption, then, is that the norm has some absolute universal status, in the sense that all people would experience it as correct, and only contravene it because some distortion occurs. The problematic nature of this assumption will become explicit in Chapter 4. In considering this literature, we should keep in mind that neither obedience nor conformity can be considered maladaptive or dangerous per se. Obeying (albeit benign) authority figures and imitating or coordinating ourselves with those around us are always involved in the formation of individual subjects (including the acquisition of language), and more specifically the formation of individuals in this family, this culture, or this society. Adequate references to the relevant psychological and sociological literatures on this point are beyond the scope of the present context, but one key figure bringing together these two bodies of thought is George Herbert Mead; see George Herbert Mead and David Leslie Miller, The Individual and the Social Self (Chicago: University of Chicago Press, 1982).

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repeatedly confirmed across very different country contexts.47 Others have looked more directly at whether individuals would show similar patterns of conformity where what was at issue was not simply a judgment of fact but a matter of values or ethics. Here too, studies have found that where groups fail to act in an ethical manner or even positively act in an unethical manner, individuals generally find it difficult to dissent.48 Importantly, and consistent with the Milgram experiments, this tendency toward conformity is significantly undermined where even one other person breaks away from the group.49 To understand this phenomenon, and to find some way of reconciling it with our intuitions about autonomy and agency, theorists have generally suggested that conformity is a function of individuals’ dependence on others for confirmation of their beliefs or for social validation.50 In this context, two types of social influence have been distinguished: “normative social influence” (an “influence to conform with the positive expectations of others”); and “informational influence” (“an influence to accept information obtained from another as evidence of reality”).51 Consistent with this framework in his experiments on conformity, Schachter found that the pressure toward agreement is stronger where the issue is important, where there is a high degree of ambiguity, and where there are few referents (beyond the group) for establishing external reality. Further evidence suggests that the conformity effect will be even higher where identification with the group is strong, again because it is from the group that a positive social identity and self-esteem are derived.52 47

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50

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Solomon E Asch, “Studies of Independence and Conformity: I. A Minority of One against a Unanimous Majority,” Psychological Monographs: General and Applied 70, no. 9 (1956); Rod Bond and Peter B Smith, “Culture and Conformity: A Meta-Analysis of Studies Using Asch’s (1952b, 1956) Line Judgment Task,” Psychological Bulletin 119, no. 1 (1996). In Asch’s original experiments, about 25 percent did not conform at all with judgments they knew to be incorrect and about 5 percent always conformed. Stanley Schachter, The Psychology of Affiliation (Stanford, CA: Stanford University Press, 1959). In this regard, the experiments on bystander intervention showing the tendency of subjects not to intervene where others fail to do so are also relevant. See, for example, Bibb Latane´, “The Psychology of Social Impact,” American Psychologist 36, no. 4 (1981). Bruce Fireman et al., Encounters with Unjust Authority (Ann Arbor, MI: Center for Research on Social Organization, University of Michigan, 1977). Leon Festinger, Kurt W Back, and Stanley Schachter, Social Pressures in Informal Groups: A Study of Human Factors in Housing (Stanford, CA: Stanford University Press, 1950). M Deutch and HB Gerard, “A Study of Normative and Informational Social Influences upon Individual Judgement,” Journal of Abnormal Psychology 51, no. 3 (1955): 629. An empirical study verifying this phenomenon is M Wenzel, “An Analysis of Norm Processes in Tax Compliance,” Journal of Economic Psychology 25 (2004).The social identity theory used to explain this is elaborated in H Tajfel, Social Identity and Intergroup Relations (Cambridge: Cambridge University Press, 1982).

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The operation of all of these dynamics is obviously highly relevant in the context of closed and tight groups such as the military or police, where access to alternative and competing sources of information or normative orientation may be quite limited and where dependence on the group for social validation may be particularly high. Moreover, these are contexts where obedience and conformity have traditionally been seen as highly functional to the success of their organizational objectives, where members’ identities have been constituted through acquiring standardized repertoires and routines of behavior (uniforms, drills), and where dissent has been strongly discouraged, if not actively punished. If we then add to our analysis the lesson from other studies about the importance of the visible presence of dissenting individuals for individuals feeling able to defy the majority view, or to refuse the majority behavior, we begin to understand not only the strong forces toward obedience and compliance, but also the impediments to dissent. The agency of the individual officer who tortures a detainee thus needs to be understood as one shaped by a very particular environment. Locating agency in this manner once again points to the difficulties that I raised in the first section of this chapter concerning Hart and Honore´’s argument that to count as a cause, the factor in question must meet the criterion of being free or deliberate action. This body of research reinforces my argument that even those causes that might seem to count as free and deliberate are less absolutely so than they might seem. Sheldon Levy’s theory of reduced alternatives also speaks to this question of contextual influences on obedience to authority, and may be particularly relevant in thinking about obedience among lower-ranked personnel.53 Levy hypothesizes that those individuals who have had the fewest opportunities for reward (socially, economically, and so on) may, under certain conditions, be more prone to identification with and consequently obedience to authority. The relationship between a lack of social reward or gratification and reliance on authority is mediated through the intervening variables of behavioral and cognitive rigidity, and a consequent intolerance for ambiguous situations. Sheldon hypothesizes, and then experimentally confirms, that identification with authority is one mechanism for dealing with the frustration that arises from difficult and ambiguous situations. In fact, in his experiments, he operationalizes the independent variable (identification with authority) by measuring people’s support for the use of violence by police and, in the international sphere, through support for military intervention, including the 53

Sheldon G Levy, “The Psychology of Political Activity,” The ANNALS of the American Academy of Political and Social Science 391, no. 1 (1970).

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“collateral damage” of civilian deaths. If we think about the social status of low-ranked security personnel in many countries, this theory may help to explain their perhaps otherwise puzzling identification with the very authorities that may treat them extremely poorly. This by no means implies that people with high levels of social power are less likely to identify with authority, and indeed the gravest responsibility for torture most often lies with those with the greatest social and political power. It is rather to suggest a specific type of vulnerability that might be at work at the sites where the everyday acts of torture are most often carried out. On the question of the characteristics of leaders or peers that make obedience or compliance more likely, research indicates as particularly salient three types of attributes of the influencing agent.54 The first is power or resource control, allowing the agent to induce obedience or compliance through offering incentives to obtain rewards or avoid punishment. The second, consistent with the findings just noted, is credibility, whereby others are motivated to hold the same or similar beliefs. The third is attractiveness, inducing the desire to identify as a way of increasing prestige or improving one’s own selfimage. Importantly, these are only general findings, and when it comes to thinking about the types of people who are likely to induce obedience or compliance in particular contexts, it will be important to find out what types of capital (social, cultural, physical, and symbolic) are valued in that context and by the people concerned. In this regard, Rejali has linked torture with a certain conception of masculinity, insofar as inflicting this type of violence is seen as the “right, manly decision.”55 Because honor, pride, and (the avoidance of) shame are important aspects of what counts as masculinity in many cultures, violence may be a response to being shamed, particularly for individuals who have few other mechanisms for dealing with such emotions. In the context of security organizations, where junior personnel may themselves be subject to forms of humiliation and shaming, their own experience of powerlessness and a loss of dignity may be translated into their acting out violently toward others. So far, I have focused on the deleterious impacts of obedience and conformity, and how recognizing the operation of these dynamics might help us to understand how individuals’ actions may be shaped by a social environment that demands or values the use of violence. We ought to keep in mind, though, that obedience and conformity are two-sided coins in relation to the commission of human rights violations and their prevention. Their operation can give 54

55

Herbert C Kelman and V Lee Hamilton, Crimes of Obedience: Toward a Social Psychology of Authority and Responsibility (New Haven, CT: Yale University Press, 1989). Darius Rejali, “Torture Makes the Man,” South Central Review 24, no. 1 (2007).

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rise to personnel complying with or failing to protest against unethical forms of behavior, but we can also take advantage of the dynamics of obedience and conformity to identify strategies for changing pathological forms of behavior and establishing ethical behaviors. In this regard, the finding noted earlier, that individuals who are willing and able to dissent can open the way for others to resist the pressures to conform, and other findings indicating that a small and consistent dissenting minority can significantly shift majority influence,56 afford important insights for designing interventions for normative change. Indeed, this literature on the dynamics of conformity, and the possibility of dissent or change being led from within a group, provides an important complement to the literature on leadership, which emphasizes the importance of leaders in bringing about organizational cultural change, a dynamic that we might think of as the flip side of the negative dynamic of obedience. In Chapter 6, I will come back to how interventions seeking to bring about normative and behavioral change in the cognate field of public health have drawn on this research to use peer influence as the basis for effective interventions.

(iii) Moral Disengagement and “Conditioning” Torture In my earlier discussion about the nature of causality, a fundamental conceptual problem that arose concerned how to make sense of the claim that human action, which would seem, by definition, to involve agency and thus autonomy, can be thought of as subject to causes. The studies that I have been discussing certainly suggest the need for a certain modesty with respect to our faith in the autonomy of individual agency and, indeed, with respect to our belief that the abstract or ideal views that people hold about what they ought to do in fact determine what they will do when placed in contexts where certain situational factors are present. And yet, given that human individuals continue to hold subjective beliefs and values, and experience themselves as making choices about how to act, we cannot sensibly think of ourselves as some type of automata whose behavior is determined by external forces. How we come down on these issues of course has critical implications for the attribution of praise or blame, an issue to which I return in Chapter 5. 56

A classic study here is Serge Moscovici, Elisabeth Lage, and Martine Naffrechoux, “Influence of a Consistent Minority on the Responses of a Majority in a Color Perception Task,” Sociometry 32, no. 4 (1969). For a review of the literature on this topic see Wendy Wood et al., “Minority Influence: A Meta-Analytic Review of Social Influence Processes,” Psychological Bulletin 115, no. 3 (1994).

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Milgram’s views on these matters were ambivalent. Observing that “many of the subjects felt, at the philosophical level of values, that they ought not to go on, but they were unable to translate this conviction into action,” he drew the moderate conclusion that “the conflict between conscience and authority is not wholly a philosophical or moral issue.” Note his inclusion of the word “wholly,” thereby preserving a role for conscience or consciousness about our own actions, even as this is tempered by the situation. He then went a step further, suggesting that because we are human we are aware, and this awareness could be “the first step to our liberation.”57 The type of awareness to which he is referring here cannot simply be one concerning what is right and wrong (because he has just told us that he does not think this will be sufficient to reliably stave off the influences of the situation). Perhaps it is rather a type of meta-consciousness about the vulnerability of one’s own moral compass and the situational factors that can influence us. The suggestion, then, is that this reflexive loop can intervene so as to disrupt the operation of the factors shaping our behavior. This tension raises some critically important questions for the way we think about prevention interventions, and specifically, the degree to which we think that change occurs through altering what someone believes to be right (as would seem to be the case for the human rights training model) or, alternatively, through altering the situational factors that shape their behavior. To opt purely for the former would seem to ignore the body of research that I have been outlining, and to act as if any fully informed individual with the right values could and would act in conformity with the demands of human rights, no matter what the situation (which is not to rule out that some might).58 It is to ignore the fact that the actual flesh-and-blood individuals who populate security organizations are always subject to multiple situational factors within and beyond the organization, or to believe that the messages conveyed in human rights training could simply displace this dense network of situational factors. Nevertheless, to approach prevention as an exercise involving no more than manipulating the situation so as to produce different types of behaviors also involves a misconception of human action. Milgram’s comments would seem to express a hope that even if our rationally held normative commitments have limited power to steer our behaviors in every situation, our consciousness about this very limitation may, through a reflexive movement,

57 58

Stanley Milgram, “We Are All Obedient,” The Listener, October 31, 1974, 568. Indeed, in all of the experiments discussed in this chapter, some individuals did not act in conformity with the situational factors, did not obey unethical instructions, and did not comply with the other members of the group.

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render this agency more potent.59 Even then though, the situational factors within which subjectivities are formed do not simply disappear or lose all force. And yet, we have not yet answered the question of how individual agents, with the capacity to form independent views and to decide what they think is right and what they ought to do, can be “shaped” by situational factors. What does this even mean? Here, Robert Jay Lifton’s notion of the “atrocityproducing situation” and Bandura’s work on moral disengagement provide some useful resources. Lifton coined this term to describe a context in which individuals can become entwined in a systemic process, driven by ideological justification for committing acts of harm toward others.60 Albert Bandura suggested that what can happen in such contexts is that individuals are brought to suspend the moral standards that they would otherwise adhere to, a process he characterized as moral disengagement.61 As I will discuss, I think that his theory does not quite capture the geography of how situational factors shape subjectivity and how individuals subjectively take up this situational reality. He also, incorrectly in my view, assumes that the commission of a violation always entails a movement away from a baseline and subjectively held morality (for example that torture is always wrong), whereas no such morality may have been in place or subjectively embraced before the situational factors he identifies come into play. Nevertheless, his theory affords important analytic tools for understanding this interaction between situation and agency. Bandura suggests four broad processes whereby, in particular contexts, moral disengagement occurs. The first involves reframing the behavior that is at issue. This may take the form of moral justification, whereby the behavior at issue is recast as a morally righteous act. In the context of torture, we are familiar with such rescripting in justifications such as “The only way I can prevent a disaster is by using force to get the information I know the suspect has.” A second means of reframing is to redescribe the behavior in euphemistic language, again a dynamic familiar in this context, where the word “torture” is replaced by terms such as “enhanced interrogation” or “crime control.”62 59

60

61 62

An example of how this theory about reflexivity was translated into a prevention strategy was the inclusion of information about the Milgram experiments in one of the human rights trainings for police in Sri Lanka confidentially shared with me as part of this project and described in the vignette preceding this chapter. RJ Lifton, “Conditions of Atrocity,” The Nation, May 31, 2004; RJ Lifton, The Nazi Doctors: Medical Killing and the Psychology of Genocide (New York: Basic Books, 2000). Albert Bandura, Aggression: A Social Learning Analysis (Oxford: Prentice-Hall, 1973). In his autobiographical recollections of the torture he experienced, the Argentinian journalist Jacobo Timerman recounts how his captors referred to the instruments of torture by girls’ names. Jacobo Timerman, Prisoner without a Name, Cell without a Number, translated by Toby Talbot (Madison, WI: University of Wisconsin Press, 2002).

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Bandura names the third mechanism for reframing “advantageous comparison,” where the individual locates his (wrongful) behavior against an imagined alternative that would be even worse; for example, “If I do not do this, the next guy will do something far worse.” The second process of moral disengagement is obscuring causal agency. This may take the form of the classic displacement of responsibility, more commonly expressed as “I was following orders” or “I had no choice.” Alternatively, it may operate through the diffusion of responsibility, for example, “Everyone was doing it; I was just a cog in the wheel.” A third process is distorting the consequences of actions. An example that we found in our own research on the use of torture against people considered deviant took the form of “If I beat him, he will learn a lesson.” Finally, the fourth process involves blaming and dehumanizing the victim of one’s acts. Believing, for example, that the victim belongs to a category of people who are purely evil or irrational or uncivilized provides a way of altering the meaning of what one is doing so that it no longer appears as harmful as it would when used against an actual human being. In this regard, a perpetrator might still agree that human dignity demands that torture not be used, but exclude the person who is the object of his acts from the category of human. Similarly, attributing blame to the victim shifts the vector of responsibility so that it was somehow he that caused the harm. As I have noted, one problem with Bandura’s theory is that he assumes that those who commit violations formerly embraced or ascribed to moral standards that would condemn those acts, and that they undergo a process whereby they disengage from their prior commitments. Clearly, this is not always true, as we know from the evidence that using torture against certain types of people receives broad approval in certain contexts. This is not, however, a fatal problem for the theory. One could, for example, interpret Bandura as describing the process whereby a moral framework that justifies the use of torture is constituted, omitting the question of what type of moral commitments preceded this process. Read in this way, one then needs to widen one’s lens beyond the organizational context to take into account the operation of these four processes within a broader social context. Thus, for example, we might consider how certain groups of people are dehumanized in a given social context in general, and not only for the purposes of their being legitimate targets of torture in a security organization. In other words, the condemnation of torture may never get off the ground and so the process is not so much a subsequent act of disengagement (implying that there was once engagement), but the original failure of moral engagement. Recognizing that moral engagement is itself a positive act is particularly important when it comes to the field of human rights, which we need to remember has been

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a historical achievement. The idea that all human beings merit certain types of respect, irrespective of their race, religion, gender, class, political commitments, or other status has by no means been embraced transhistorically. A second criticism one might level at this theory is that Bandura has not captured all of the relevant processes, or he has not correctly captured them so as to provide a complete and accurate description. From my perspective, this is a minor quibble, because the importance of his theory lies not in the fine details of the processes involved, but in the framework it affords for marrying what would otherwise seem to be “external” and “subjective” factors. That is, he provides a framework for thinking about the affective and cognitive processes whereby individuals embedded in atrocity-producing situations come themselves to understand what they are doing as acceptable, even if, when out of those circumstances, they may not do so. In other words, and in contradistinction to some of the literature that I have been discussing, he explains the process as a set of subjective shifts. At the same time, it is important not to interpret him as making a voluntaristic argument, as if the cognitive and affective processes he describes are ones that the person consciously and reflectively moves though. A term like “displacing responsibility” might seem to imply that the person recognizes his responsibility and then hides it from himself. A better way to read Bandura is in conjunction with the theories I have been outlining about the dynamics of obedience and conformity. One then appreciates that he is describing the subjective dimension of the shifts that take place through individuals’ involvement in the situation in which they find themselves. This becomes clearer in Bandura’s “social learning model,” a theory that seeks to explain the mental processes that a person adopts in order to make sense of her social environment, and how this leads to her behaving in particular ways.63 Such mental processes are influenced by how individuals process or interpret the images and words around them, translating them into their own attitudes and behavior. The behaviors they adopt are then either reinforced by the positive responses others have to them, or by positive consequences of their behaviors. Alternatively, negative responses and consequences may lead them to try out other behaviors. Importantly, the effect of those consequences or responses cannot be assessed without an intimate understanding of meaning in context, and depends on how the individual in question perceives those responses and consequences, as well as on the valence they have in their social world. For example, far from constituting a negative response, getting into trouble with authority figures may be 63

Bandura, Aggression.

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understood by some adolescents as a sign of kudos. What is important to understand here is the entanglement of a person’s own interpretation of their actions, the assessments that others have of those actions, the assessment that other others have of the others’ behaviors, and the meaning that those assessments have for them. Individuals would be more likely to engage in positive behavior change when they see positive behaviors modeled and practiced, are able to increase their own capacity to develop these behaviors, are able to gain positive attitudes toward these behaviors (known as selfefficacy), and experience support from their social environment as they engage in these new behaviors. This entanglement of our own normative evaluations, those of others, and the feedback we both receive and witness is illuminated by theories concerning the role that our beliefs and our assessments about other people’s beliefs play in our behavior. A useful theory in this regard is the Fishbein–Ajzen theory on motivation, which asserts that motivation is underpinned by several intersubjective factors.64 First is the subject’s attitude to performing the act in question, which in turn is influenced by their beliefs about the consequences of performing the action, and their evaluation of those consequences. Second, motivation is underpinned by subjective norms or a person’s evaluation of what others whom they consider significant believe should be done. In other words, an individual’s own motivation to adopt or change a certain behavior is in part determined by what they believe such “referents” or figures of influence believe and value, as well as by how powerful the forces of compliance are that bind them to these others’ beliefs and values. Alongside the role that personal attitudes and social norms play in motivation, a person’s emotional response to the behaviors being encouraged or discouraged is also a determining factor. In other words, motivation cannot simply be read through an economic calculation of the costs and benefits, but must be understood subjectively. What do I think is going to happen if I behave in a certain way? How do I evaluate those outcomes? What do the people whose views matter to me think about what I am doing? And finally, how do different patterns of action make me feel? Casting the subjectively held norms and behaviors of an individual in this intersubjective space takes us past the poles of a voluntaristic or determinist framework. Linking this back with our subject, Kelman’s work on the factors that “condition” torture usefully mediates between voluntarism and determinism

64

Fishbein and Ajzen, Belief, Attitude, Intention and Behavior.

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and starts to bring together these perspectives.65 First, a certain state of affairs exists or is posited that authorizes the practice. An example would be the contention that there is a threat to the security of the state of such gravity as to justify torture. Second, a group of people and set of procedures are developed that routinize the practice, such that the actions come to be seen as a normal part of one’s job. Third, a class of people are dehumanized such that it becomes “unnecessary for actors to view their relationship to the victim in moral terms” and their treatment no longer shows up under the same moral categories as might otherwise apply.66 Importantly, these are best thought of as three interacting dimensions rather than three processes that run sequentially or in parallel. Together, they can be thought of as “the processes that permit the construction of a separate reality.”67 The construction is both an objective and a subjective one. Linking this with the question of torture prevention, the implication is that what are required are strategies that will prevent the construction of a separate reality that would sustain torture, or, if that reality has already been established, diminishing its influence and impeding its spread.68 Recognizing that the “the torture reality” operates along a number of dimensions, Kelman argues that to be effective, their deconstruction also needs to operate at these different levels. He specifies three: the victims, the perpetrators, and the society at large. “The society at large,” while still too inchoate to ground a specific type of intervention, is critically important in this discussion, because, so far, I have mainly been speaking as if the situational factors that shape the behavior of security personnel in relation to torture operate within the bounds of the organization, although also extending out to the criminal justice system. As will become clearer in the next chapter when I turn to the empirical findings concerning the situational factors operating in specific contexts, this picture overstates the boundaries between the dynamics operating in the organization and those operating in other dimensions of the environment. It is unlikely to be the case, for example, that torture is condoned within the security organization but broadly condemned in the social reality beyond that organization, a social world to which members of the forces also belong. As Crelinsten argues, the “passivity or silent acquiescence on the part

65

66 67

68

Kelman and Lee Hamilton, Crimes of Obedience; Herbert C Kelman, “The Social Context of Torture: Policy Process and Authority Structure,” in The Politics of Pain: Torturers and Their Masters, edited by Ronald D Crelinsten and Alex P Schmid (Boulder, CO: Westview Press, 1995). Kelman, “The Social Context of Torture,” 28–29. Ronald D Crelinsten, “The World of Torture: A Constructed Reality,” Theoretical Criminology 7, no. 3 (2003): 307. Ibid.

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of the larger society allows the reality construction to spread into more and more spheres of political and social life until it is sufficiently anchored in law, custom and discourse to define what is right and wrong, what is permissible and what is not. In this sense, bystanders are not merely passive.”69 Broader social attitudes, and the operation of the broader legal and political systems, undoubtedly also form part of the “atrocity-producing situation.” Indeed, because security sector organizations are embedded in political and legal systems, if not subordinate to them, attending to the processes, structures, and cultures operating in these spheres will be a sine qua non of addressing the situation. Pointing out that the situational factors associated with security sector organizations are embedded in legal and political systems might seem to have taken us back full circle to the macro-political and legal systems that many of the conventional torture prevention approaches target, principally through naming and shaming. Indeed, one obvious objection to what I have just said is that there is no point addressing the situational factors in security sector organizations because they are simply an expression or reflection of political dynamics or the pathologies of legal systems. Indeed, in more accusatory terms, the approach I am suggesting might be accused of being depoliticizing. To this important objection, I have several responses that will unfold through this book. For now, suffice to say that while I see it as critical to locate torture against the background of dynamics of power and larger political logics, from the point of view of preventative practices, we need to treat with caution sweeping or abstract diagnoses and slow them right down. Assuming that it is something called the “political sphere” that drives (in an unspecified way) the dynamics and operations of the security sector leads to the belief that prevention will be achieved by altering the calculus of political decision makers, with institutional transformation in subordinate systems following as a matter of course. Or, in a similar manner, assuming that the situational factors operating in the security sector are but a reflection or expression of the legal systems that steer them leads to the belief that legal reform will bring about security sector reform. The empirical evidence I discussed in the previous chapter illustrated the weakness of these beliefs (or theories) and the flaws in the programs that follow from them. Undoubtedly, insofar as it is state practice, torture always involves power relationships and will in most cases be an expression of a more comprehensive political logic. The mistake is to locate the source of this political logic uniquely at the apex of the state, and to assume that if the head is cut off, the body will follow. Politics is, I would 69

Ibid., 303.

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argue, a more dispersed and variegated animal, and a fully comprehensive approach will be a multi-scalar one that locates the operation of political logics at multiple sites. Thus, what I am urging is the type of close attention to the dynamics of the situation that sheds light on how situational factors operating in all of these different dimensions (the ideological, the social, the cultural, the political, the legal, and the organizational) shape both each other and the beliefs, values, judgments, and actions of individuals. This type of close attention should at once be informed by what we know in general about the relationships of power between political, legal, social, and security sector systems, and at the same time not be blinded by preconceptions. It should also be informed by an awareness of the types of situational factors that studies like those discussed here tell us produce violence or induce obedience and conformity so as to support the commission of violence; but at the same time it needs to attend to the situational factors operating in the actual context under consideration. In the next chapter, then, I turn to what empirical studies, including the ones we carried out in Sri Lanka and Nepal, tell us about how the structures, processes, and cultures normalize, legitimate, facilitate, and create opportunities for torture.

Vignette 4

Growing up as the child of survivors of the Shoah, I never had any doubt that people who abused human rights merited absolute condemnation. If they were involved in torture, they deserved especial excoriation. I was still very young when my grandmother told me of being tortured in Pawiak prison in Warsaw in 1940. Years later – I was about twenty-two – I was sitting in a cafe in Melbourne on a rainy night with a young German woman when she confessed the profound guilt she carried for what the Germans had done (long before she was born). I didn’t skip a beat before telling her that she should. This was not just a matter of occupying the high moral ground; to do otherwise was to betray the people who were the direct victims of atrocities, not to speak with unequivocal moral clarity was to redouble their abuse with complicity, or condone it with apathy. It was crystal clear. So, conducting research that involved trying to understand the worlds of security personnel who work in institutions where torture is routine, and who perhaps had committed or condoned torture themselves, occurred to me as blurring a line I’d fervently held. I’ve found that almost all of the scholars who have conducted research with perpetrators or perpetrating organizations experience similar moral trepidation. Time and again, I read their qualifications that comprehending is not to be confused with excusing, and we all seem to experience the imperative to make sure that our readers appreciate that neither our desire to understand, nor the understanding we may have acquired in any way compromise the absoluteness of our moral positions. I think we do this because we understand what it is like to stand on the other side of the bright line, and that dogma is a close cousin of moral clarity. One way of protecting ourselves from falling into a complete moral morass is to insist that even if lower-level perpetrators are “interpolated” into atrocityproducing situations, those at the top are unequivocally responsible and blameworthy; driven by motives we abhor and seeking to achieve objectives 143

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we condemn, they are truly evil. It’s odd that we keep our moral compass intact by believing something so horrifying. But when I think hard about it, I’m not sure that this doesn’t just push back the moral quandaries. Of course, power is asymmetrical and some individuals are more responsible and autonomous than others, but once you adopt the view that all agency is situated, you can never really rest in attributing pure evil agency, even at the apex of an imagined triangle. This understanding, I’ve hoped, will open a better path into working out what is really going on – and knowing what is really going on might make it possible to work out how to change it. But then, looking deeply into what’s going on starts to dislodge some of the pegs that hold the world in place. It’s not that I get confused about what is right and wrong, but blame and responsibility seem to get a whole lot messier. There are certainly times that I wish I’d stayed on the other side of the line and not tried to understand the worlds that produce torture at all.

4 The Production of Worlds of Torture

We are all branches in the tree. You can’t make only the police change and not society. This is like a pyramid; the upper people can’t be changed without changing the bottom. (Police constable, Sri Lanka)

1 THE WORLDS THAT PRODUCE SUBJECTS WHO TORTURE

In the previous chapter I discussed some of the most illuminating research that has been conducted over the past fifty years on the question of how apparently ordinary people come to commit acts of violence, and elaborated the “situational hypothesis” that grew from it. This body of research, framed within a sophisticated map of causality, provides us with a framework for thinking through the different types of causal factors at work in the production of torture. It also allows us to begin to fill out a causal story that accounts for the direct contribution of agents (perpetrators), while also locating those agents within contexts that constitute the conditions under which their beliefs, values, and actions are formed. The resultant claim, concisely put, is that a comprehensive answer to the question “What causes torture?” requires that we attend both to perpetrators’ motivations and reasons for action and to the conditions within which they develop such motivations and reasons. I described this movement as a shift in aperture, moving our lens out to take in a larger set of factors that contribute to the causal story. Reflecting on how the subjects in his experiments committed acts that, in the abstract, they themselves defined as morally wrong, Milgram pithily captures this slippage between what would otherwise seem to be two distinct realms – the external situation and the individual’s own agency: 145

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If, after all, the world or the situation is as the authority sees it, a certain set of actions follows logically. The relationship between authority and subject, therefore, cannot be viewed as one in which a coercive figure forces action from an unwilling subordinate. Because the subject accepts authority’s definition of the situation, action follows willingly.1

Milgram is here focusing fairly tightly on the authority of a particular figure, but a more expansive reading of the literature suggests a broader range of factors involved in the production of “willing action.” It also suggests that such factors are not limited to persons of influence, but include the systems within which people are working and living – their political, material, and institutional conditions. Milgram again captures this well when he writes, “The act of shocking the victim does not stem from destructive urges but from the fact that the subjects have become integrated into a social structure and are unable to get out of it.”2 A study conducted by the International Commission for the Red Cross on soldiers’ respect (or violation) of human rights and humanitarian laws similarly found that individual-level factors that we might see as rooted in personality or autonomous choice, for example, aggressiveness or a particular goal or interest that the individual is pursuing, poorly explained why security personnel violate these laws.3 This may seem fairly obvious, in the sense that it is well understood that when individual security sector personnel commit torture, they are generally not acting on their own behalf, but in their capacity as “agents of the state.” As Milgram’s comments show, however, the fact that they are acting as agents of the state does not imply that they cease to be subjects; in acting, they are embracing for themselves the logics and aims of the state, at least insofar as they are willing to act in certain ways. What needs to be explained is how individual personnel come to enact logics and take actions that are, according to broadly accepted standards, absolutely wrong. Indeed, parsing their data, the ICRC acknowledges that neither knowledge about, nor abstract attitudinal commitments to these bodies of law and normative standards are sufficient to prevent soldiers committing violations such as torture. Soldiers violate these laws and norms, the ICRC argued, because they are morally disengaged, they dehumanize the enemy, conform to the group, and accept the directives of superiors as absolutely legitimate and thus 1 2 3

Milgram, Obedience to Authority, 145. Ibid., 166. Daniel Mun˜oz-Rojas and Jean-Jacques Fre´sard, “The Roots of Behaviour in War: Understanding and Preventing IHL Violations,” Revue Internationale de la Croix-Rouge /International Review of the Red Cross 86, no. 853 (2004).

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authoritative over their own moral intuitions and behavior. The trauma of violent conflict, threats to oneself and one’s fellows, and in some cases experiences of being humiliated and mistreated in the course of military training intensify these dynamics. Moreover, all of these processes occur through individuals being inculcated into their role and identity as combatants, a process that, especially in circumstances of violent conflict, involves demonization of the enemy and moral elevation of one’s own side (military and nation), not merely as embellishments to an otherwise fully constituted identity, but at the core of identity formation. The ICRC thus characterizes the process whereby individual combatants come to commit violations as an insidious one in which the basic operations and culture of the organization are implicated. Thus, it concludes that: it is probably quite rare to find evidence of orders that explicitly urge combatants to violate the rules of IHL (international humanitarian law) for in general this is not necessary. The fact that war is conducive to criminal behavior, the legitimizing of the act of killing, the hatred and the thirst for revenge that often become entrenched – all these factors combine to make violation of the law relatively easy.4

In other words, it is permissive or authorizing contexts rather than either individual disposition or the explicit demands of superior officers that best explain the persistence of violations. Correlatively, if organizations such as the ICRC are to be effective in changing combatant behavior, they will be able to do so to the extent that they and the norms they promulgate come to be experienced as authoritative for those combatants. Despite this acknowledgement of the contribution of situational factors, and similar acknowledgment that was evident in some of the approaches to prevention discussed in Chapter 1, a number of other researchers examining this field have pointed out that one of the chief failures among those coming from the Global North and designing interventions for security sector reform in the Global South is that they ignore the social and economic contextual factors involved in torture and cognate violations.5 Alice Hills, for example, 4 5

Ibid., 85. See Alice Hills, “Lost in Translation: Why Nigeria’s Police Don’t Implement Democratic Reforms,” International Affairs 88, no. 4 (2012); Beatrice Anne Jauregui, Provisional Authority: Police, Order, and Security in India (Chicago: University of Chicago Press, 2016); Julia Hornberger, “Human Rights and Policing: Exigency or Incongruence?,” Annual Review of Law and Social Science 6 (2010); Tomas Martin, “Taking the Snake out of the Basket: Indian Wardens’ Opposition to Human Rights Reform,” in State Violence and Human Rights: State Officials in the South, edited by Andrew Jefferson and Steffen Jensen (Abingdon: Routledge, 2009).

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criticizes the contention that police training provided by liberal countries in the Global South could be sufficient to overcome patterns of the use of violence grounded in far broader social and cultural factors. As she puts it, “transnational policing, like reform projects more generally, ignores the nature and purpose of Police institutions in the South, downplays the underlying causes of insecurity, and assumes that international agents can manipulate political and social forces.”6 This quote explicitly draws our attention to the (global) North–South tension, and the blindness that those whose background context is the North may have to some of the principal and perennial situational factors at work in the South. Also at work here, though, is the divide between those who believe that it is possible to improve the human rights performance of security sector organizations by “steering” such organizations from the outside, and those who insist that we need to take seriously the dense worlds of these organizations and the complex tapestry of contextual factors within which violence or torture forms a part. Those within this latter camp argue that change is not something than can be manipulated through pulling external levers, but must emerge from a deeper form of transformative engagement with those organizations, from the inside as it were. These divergent perspectives are well illustrated by a study conducted on the impact of the UK Human Rights Act on policing practice in the UK, the results of which exemplify the shortfall between what we might expect would happen when laws are introduced to require that security institutions respect human rights (especially in countries where the rule of law is well entrenched), and what actually occurs when formal law encounters the world of security organizations.7 The study also provides useful insight into the disparity between formalistic understandings of law as a source of regulation, and the understandings of the actual operation of law in situ that are gleaned when we pay attention to embodied practice.8 The study found that the UK Human Rights Act appeared, in the abstract, to be a well-crafted and comprehensive piece of human rights law. Nevertheless, and despite the introduction of various programs to train police in the new regime, the legislation had very little effect on how police actually behaved. On the contrary, once it had been filtered through the refraction of policing 6 7

8

Hills, “Lost in Translation,” 314–15. Bullock and Johnson, “The Impact of the Human Rights Act 1998 on Policing in England and Wales.” This distinction could also be cast in disciplinary terms, as a tension between the discipline of law and sociology, anthropology, or criminology. To do so, however, would be to ignore the internal diversity within the former discipline, which is dominated by, but not limited to, a doctrinal or normative, as distinct from a more richly empirical and critical, approach.

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structures and cultures, the main impact of the Act was to provide police personnel with “a framework for mandating police decision making and protecting officers from criticism and blame.”9 In trying to explain this conclusion, the authors have recourse to an observation familiar to police and military sociologists (and most certainly to the people who work within security organizations) that policing and military organizations constitute “worlds” with dense structures and cultures that deeply influence the values and behaviors of those who work within them: Criminologists have consistently argued that the relationship between law and policing (and, in particular, any attempt to use law as a top-down method for achieving change in police practice) must be understood within the context of organizational cultures in which the majority of police officers are “characteristically ambivalent” to law (Dixon 2007: 24) and regard knowledge of law as less important than an “appreciation of local community norms” (Fielding 1988: 52). As Ericson argues, the imposition of legal rules, as a method of administrative control, rarely changes police decision making: “. . . rules are literally dead letters, dying as the ink dries on the paper on which they are published” (Ericson 2007: 379). This is because, as commentators have argued, the effect of legal rules is significantly determined by the “police cultures” in which they operate and the “working personalities” of the police officers who interpret and enforce them (Reiner 2000; Waddington 1999). Academics have more recently focused on the impact of law on police habitus (Chan 1996; Johnson 2010) in order to show its limitations in shaping the behaviors and attitudes of police officers.10

The study’s findings, and the idea that security organizations constitute dense worlds, suggest three lines of inquiry. First, we need to develop a richer understanding of these worlds and how they might condition (or mitigate) practices such as torture. General principles or trends, such as dehumanization or internal humiliation and cruelty, need to be filled in with the details of what particular worlds look like and the relationship between different aspects of those worlds and the practice of torture. Linking this line of inquiry with existing prevention approaches, we might see it as continuous with those approaches that seek to uncover the institutional factors that contribute to the use and prevalence of torture and then advocate for these factors being addressed by relevant authorities. The reports of the Special Rapporteur on Torture exemplify this approach, and here I am suggesting that researchers ought to build on such approaches by coming in close to particular contexts 9 10

Bullock and Johnson, “The Impact of the Human Rights Act 1998,” 630. Ibid., 632. See original for references.

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and establishing a detailed understanding of all of the dimensions of what I have called the complex web of the worlds that produce torture. By definition, this means conducting site-specific studies, and to illustrate what this might look like, in this chapter I survey some empirical studies that model the type of approach I am suggesting. These include our own research in Nepal and Sri Lanka and a selection of others where researchers have sought to understand violence in the security sector through a close study of the practices of specific security organizations and the understandings that security personnel themselves have of what they do.11 The second line of inquiry raised by this quote, and to which I will turn in the next chapter, concerns how the human rights framework might have impeded this type of broad-ranging attention to situational factors, rather fostering a focus on legal reform and on individual agents. The third line of inquiry concerns what we mean when we talk about the culture of a security sector organization and how we think that culture contributes to or impedes the use of torture. Note that in the quote “police cultures” are named as a significant determinant for what happens to legal rules, and, indeed, if one looks at the literature more broadly, organizational culture is frequently held up as the source of the problem (for example “a culture of violence”) as well as the site of the solution (introducing a “culture of human rights”). Despite this explanatory force, what culture actually entails is almost always left undisclosed, as is any elaboration of how culture does what it is thought to do. In Chapter 6, I try to unpack what we mean by “organizational culture” and to develop a practical or operationalizable conception of culture than can provide a foundation for thinking through a strategy for change. For now, I turn to empirical studies on the worlds that produce torture. 2 GETTING INSIDE SECURITY ORGANIZATIONS

In their introduction to a collection of articles reflecting on empirical research on the interaction between human rights regimes and (illegitimate) state violence, Andrew Jefferson and Steffen Jensen draw our attention to the two 11

The fact that almost all of the studies and our own empirical research mainly look at police and not militaries represents an important gap in our knowledge, especially as militaries are sites for precisely the type of systematic torture that is the subject of my inquiry, and we know this to be the case in Sri Lanka and Nepal, where systematic torture by their militaries has been widely reported (Manfred Nowak, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – Mission to Sri Lanka [Geneva: United Nations, 2008]). The paucity of research in this area reflects the difficulty of gaining access to militaries to conduct the type of ethnographic research that would provide the rich picture of situational factors that researchers are looking for.

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very different perspectives on state violence that come from these two “sides”: the human rights advocates who come in to prevent violence, and those involved in producing it. From the perspective of the former, they argue, everyday violence is abstracted from its context and “redefined as breaking rules, codes, regulations, conventions.”12 Framed thus, such violence comes to be understood as a failure to appreciate or conform with a normative stance articulated by human rights laws and standards. In ontological terms, violence is a lack, an emptiness, much as in some theological systems, evil is conceived of as the absence of good.13 From the perspective of those involved in the production of this violence, by contrast, violence forms part of their everyday practices and as such, has a certain rationality or makes a certain type of sense. This suggestion – that acts as horrendous as torturing other humans could have a type of rationality – is likely to strike most people as deeply ethically problematic, especially if one interprets it as an acceptance of ethical relativism. In a way that parallels my discussion of definitions of torture in Chapter 1, this approach might seem to suggest that one cannot make an absolute judgment on the wrongfulness of torture. But to interpret the point in this manner would be to misunderstand it. Theirs is not a normative argument. It is a descriptive one. What they are trying to do is to draw our attention away from the isolated act of torture, and into the broader context out of which the act emerges. To return to my discussion of causality in the previous chapter, they are asking us take a wider lens, and look at the broader conditions and not only the immediate causes. Once we do this, the judgment that there is to make about the wrongfulness of torture remains, but the object of that judgment becomes the more holistic system or set of structures and meanings within which torture becomes rational, and not merely the choice, or the values and actions of the individual perpetrator, abstracted from this world. What follows from this is not an ethical laxity with respect to the obligation to prevent torture, but an understanding that the problem or cause that we need to diagnose as part of our preventative strategy needs to become significantly broader.

12

13

Andrew Jefferson and Steffen Jensen, State Violence and Human Rights: State Officials in the South (Abingdon: Routledge, 2009), 11. Jefferson and Jensen draw powerfully here from the post-colonial scholarship of J-A Mbembe in On the Postcolony (Berkeley, CA: University of California Press, 2001). My reference to evil as the absence of good inverts Badiou’s argument that one of the effects of the human rights framework is to reduce the good to nothing more than the absence of evil. See Alain Badiou, Ethics: An Essay on the Understanding of Evil, translated by Peter Hallward (London, New York: Verso, 2001), 8–9.

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To get closer to the notion that torture has a certain rationality within a particular world, we need to move from the abstract to the concrete, where the contours of such worlds become visible. Tomas Martin’s ethnographic study of prison guards in the infamous Tihar Jail outside Delhi paints a vivid portrait of such a world, one in which torture has become an everyday practice and into which there was now an attempt to introduce human rights norms as part of a broader reform effort.14 For the guards who inhabit the world of the jail, human rights norms occur as anathema. As one so evocatively puts it, “the human rights people ask us to take the snake out of the basket and put it around our neck.”15 This is a strong metaphor, a window into the experience of the guards, for whom introducing human rights feels like injecting poison (or the threat of poison) into a system that has a certain functionality, or at least one where they understand and can cope with the circulatory system. At first glance, it would seem that this comment simply means that without the use of violence, including torture, guards are themselves at risk of being subject to violence. It is not, however, Martin argues, simply against violence at the hands of prisoners that they are protecting themselves; they are also guarding against the loss of a way of coping within the pathological world of the prison. To fill this out, Martin describes the appalling conditions in which the prison guards live and work, particularly those at the lowest ranks who are responsible for the day-to-day handling of prisoners. Living in often squalid and cramped conditions with minimal basic infrastructure, they are almost permanently separated from their families and communities and deprived of any possibility of retaining a viable connection with them. Poorly paid, continuously overworked and themselves ill-treated, they exist under exactly those conditions that Baxi characterized as “criminogenic”16 and that Martin links with their hostility to human rights norms. For Martin, the link between appalling living conditions and violent behavior is not a simple linear one, which we might imagine passes through an intervening variable such as frustration. He rather interprets the hostility that low-level prison guards express to norms introduced to curb their use of violence against inmates as an expression of “a form of agency that reproduces the us/them demarcations that are such powerful operational concepts of hierarchical ordering and control in total institutions.”17 In the background here are two bodies of empirical work and theorizing: Goffman’s classical 14 15 16

17

Martin, “Taking the Snake out of the Basket.” Ibid., 139. Upendra Baxi, The Crisis of the Indian Legal System (New Delhi: Vikas Publishing House, 1982), 193. Martin, “Taking the Snake out of the Basket,”149.

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analysis of role demarcation and enforcement in total institutions,18 and Michael Lipsky’s work on how street-level bureaucrats, or officials at the frontline, negotiate difficult work situations.19 As Martin explains, Lipsky suggests that when street-level bureaucrats bend or manipulate rules, or otherwise engage in problematic work practices, this is not because they hold problematic attitudes or are so predisposed to behave because of their backgrounds; rather, their doing so needs to be understood as their negotiating or dealing with difficult and unwieldy work situations. Correlatively, in Tihar Jail “the least harmful way to conduct one’s work involved inflicting suffering on others.”20 Martin takes care to reassure the reader that his argument is not intended to exonerate guards for their use of violence, a qualification that researchers seeking to illuminate how perpetrators experience the world almost always include, presumably because they know that explanation, particularly in this context, is easily and often confused with vindication. Rather, he wishes to show that when one approaches the use of violence from the perspective of those who are inflicting it, one finds that it has meanings that are embedded in their everyday practices and ways of dealing with the distinctive world that they occupy – a world that is often very different to the one occupied by those who seek to prevent human rights violations. As such, when human rights are introduced as a new normative framework for the regulation of their behavior, what they experience is an intervention that would deprive them of the coping strategies they have developed. From their perspective, this holds true irrespective of the normative standing of human rights outside the prison, or even according to an absolute standard of rights or dignity. Again, we need to be very careful to understand what flows from this analysis and what does not flow from it. Torture constitutes an absolute and universal breach of ethical conduct, and its inexcusability is not abrogated by the suggestion that we can understand prison guards’ use of torture in a particular context as (at least in part) their “coping with their world.” The objection might be raised that it is impossible (or irrational) to simultaneously hold these two perspectives – one that explains, and one that condemns; but this judgment follows from the belief that ethical (or legal) condemnation is only justified in cases where the sole cause of an act is the agent’s freely made, unconditioned, and autonomous choice. And yet since 18

19

20

Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (New Brunswick, NJ: Aldine Transaction, 1968). Michael Lipsky, Street-Level Bureaucracy: Dilemmas of the Individual in Public Service, 30th anniversary edn. (New York: Russell Sage Foundation, 2010). Martin, “Taking the Snake out of the Basket,”147.

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Aristotle,21 and as reflected in the contemporary legal principle of superior orders,22 the compatibility of acknowledging the presence of strong external causal factors while absolutely condemning those who commit certain grave wrongs has been recognized. Indeed, as I argued in the previous chapter, a comprehensive causal story does not require a choice between the ethical responsibility of individuals on the one hand, and the contribution of situational factors to their actions on the other, nor force them into some type of zero-sum game. One way of dealing with this apparent contradiction is to locate the two perspectives in the context of two different system purposes, as I discussed in Chapter 2. Where the system purpose is to allocate personal responsibility, or apportion blame, one will wish to highlight individual agency and thus responsibility. If the system purpose is to use the law and the action of law to authorize the absolute condemnation of torture, again, one might highlight the immorality of individuals’ acts and choices. If, however, the system purpose is to alter the outcome, then there may be good reasons to tell a causal story that draws our attention to the conditions that enable or impede the problematic action. This is especially the case in light of the research discussed in the previous chapter, and the broad finding that moral admonishment is often insufficient to override situational factors. Holding these two perspectives simultaneously may seem to generate a contradiction, but we can avoid this by bracketing metaphysical conceptions of the self and asking what conception of the self serves the ethical purpose we wish to achieve. As Galen Strawson has argued, for example, the reactive attitude of blame that underwrites punishment can be justified on the grounds that it is necessary to constitute a certain moral order and particular type of moral subjects, without any particular commitment to the idea of free will.23 By the same token, if a conception of the self as embedded better supports preventative strategies 21

22

23

Aristotle argued that some acts are so heinous that no circumstantial factors, including being compelled to perform the act, diminish the ethical obligation not to perform it. Aristotle, The Nicomachean Ethics, 111a. The legal principle of superior orders holds that the fact that a person was ordered to commit certain wrongs provides no absolute defense in relation to an act that “offends the conscience of every reasonable, right thinking person,” a principle reiterated in Article 2(3) of the UNCAT. See Jordan L Paust et al., International Criminal Law (Durham, NC: Carolina Academic Press, 2000), 120. On the ethical issues surrounding command responsibility see Kelman and Lee Hamilton, Crimes of Obedience. Galen J Strawson, Freedom and Belief (Oxford: Oxford University Press, 2010). Spinoza’s argument in favor of punishment tracks a similar logic. See Benedict de Spinoza, TheologicalPolitical Treatise, translated by Michael Silverthorne and Jonathan Israel (Cambridge: Cambridge University Press, 2007), chapter IV. See also letters between Spinoza and Willem van Blyenbergh (Letters 18–24) in Baruch Spinoza, Complete Works, translated by

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that take as their objects systems and not individuals, it is the one we ought to choose. We can do so, I argue, without thereby committing ourselves to any particular conceptions of persons. Coming back to the situation in which systematic torture occurs, in our research in both Nepal and Sri Lanka, we similarly found that low-ranking officers, especially those posted to remote locations, often live and work in degraded conditions. Some police stations that we visited in remote parts of Nepal had an insufficient number of beds in the barracks for each officer to sleep in, and so they had to share beds, sleeping in shifts. Some barracks did not have toilets. Security personnel from the Nepal Police and APF described being required to be on duty twenty-four hours a day, with no reliability of shifts, and lengthy separations of months if not years from their families – conditions that not only undermine their motivation, but ensure precisely the type of institutional isolation that I described in the previous chapter as most conducive to dangerous patterns of obedience and conformity with the norms of the group within which they become embedded. In these same remote police stations, detainees are often held in cramped and deprived conditions that constitute degrading treatment, but the disparity between how they and their captors live may not be so large. As one officer put it: “We are on duty twenty-four hours a day by law, where is our human rights? . . . I was watching a news clip of a riot. They showed how protestors got injured but nobody shows the injuries the police sustained. One police had his teeth broken, the other the arm, another had injuries to the head.”24 It is not only security personnel who draw a link between such working conditions and the use of violence, a presumed connection that one could easily dismiss as a justification that serves their interests. This link is also made by people from other agencies who have been working around these issues. A representative of a Nepali civil society organization, for example, who had himself conducted extensive research and worked for many years on policing and human rights in Nepal, told us: The reasons for occasional physical torture also include their [police] living conditions: their rations, working hours, their barracks, offices, and kitchen . . . it [torture] is no more institutional policy, but could happen due to an individual’s arrogance or frustration from their job . . . The physical condition of their facilities are worse and does [sic] not meet minimum standards for living. I have seen the sleeping quarters and kitchens of police

24

Samuel Shirley, edited by Michael Morgan (Indianapolis, Cambridge: Hackett Publishing, 2002), 804–37. Interview with mid-rank officer, APF, December 2012.

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officials, including senior officers. One of the senior officer’s residence when you look at the ceiling and it can cave in anytime. Just imagine then the conditions that the junior ranks and constables live. They sleep in spaces that resemble fallen bunkers. In few years back, I had opportunity to visit police facilities in Kailali. The barracks were located inside the District Police Office, and the floors of rooms were wiped with mud. When it rained it would be a disaster there . . . After all this frustration and irritation will eventually burst, and there is possibility of ventilating irritation and frustration over detainees or their junior ranks.25

A representative of an organization that works with torture victims had been describing in detail the violence inflicted against children in detention and the sexual violence against women when we asked him what he thought were the root causes of torture.26 Somewhat surprisingly, he referred to “family separation,” stress “related to their salary and the kinds of benefits they get,” “the strict hierarchy and system they have to work under,” and “lack of effective skills to deal with victims” adding to their frustration. When we asked him what he thought might be done to address torture, he suggested “peer-support groups within their institution so that they can share their feelings, concerns, and other things and help to provide them with relief” and other processes to “enable them to manage stress and anger management skills and to become able to understand constructive and destructive coping behavior and apply this in their daily life.” In research that Human Rights Watch conducted on human rights violations by police in India, they similarly found that junior and low-ranked police in particular often lived and worked in degraded conditions and that these conditions played a role in their abusive behavior. Dirty and inadequate living conditions, the absence of even the most basic infrastructure like working toilets, and perennial separation from family left police personnel using terms such as “suffocating,” “punished,” “treated as if they were themselves prisoners,” and “demoralized” to describe how they felt about their work. Again, the report is careful to qualify the point it is making in drawing attention to such conditions, noting that “poor work and living conditions never justify violations of human rights.”27 Nevertheless, it emphasizes the importance of 25

26

27

Interview, Kathmandu, November 23, 2012. On conditions of policing in Nepal, see also Nigel Quinney, Justice and Security Dialogue in Nepal: A New Approach to Sustainable Dialogue, Building Peace 1 (Washington: United States Institute for Peace, 2011), 13. Interview with representative of a torture rehabilitation organization, Nepal, September 21, 2012. Human Rights Watch, Broken System: Dysfunction, Abuse, and Impunity in the Indian Police (New York: Human Rights Watch, 2009), 7.

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recognizing that such conditions, combined with a requirement to be available for duty twenty-four hours a day, seven days a week, constitutes “a grueling reality”28 that establishes conditions under which resort to violence is more likely. Echoing these findings in a report on custodial crimes, the Law Commission of India made the point that “prolonged stress” and “long hours of duty” combined with pressures to meet quotas resulted in police leaving “the path of patience, reticence and scientific investigation” and resorting to the use of physical force.29 The distinction I drew in the previous chapter between causes and conditions is helpful in making sense of the precise nature of the claim being made here. There can be no contention that working conditions, irrespective of how appalling they may be, could be a cause of torture. Nor does any of the research that links the degraded and stressful conditions of police to their use of torture suggest that this is a sufficient explanation, nor that it should be considered a stand-alone factor. It rather locates the impact of these conditions within the context of a range of other situational factors that may combine to produce systematic torture. Particularly important here are two types of direct pressures under which low-ranked officers operate and conduct their investigations. The first, perhaps best thought of as a “supply side factor,” comes from the inadequate provision of equipment required to conduct proper criminal investigations. This includes not only equipment at the more technical end of the spectrum, like fingerprinting equipment, but the most basic tools of their work – pens, papers, vehicles, petrol for vehicles, phones. We were repeatedly told that beyond the confines of specialized criminal investigation teams, investigations were generally conducted without even the most basic equipment needed to collect the type of evidence required to build a case. The dearth of investigative equipment is a long and well-recognized problem for police in the Global South, and accordingly, in both Nepal and Sri Lanka, we heard about instances where international donor programs had responded to these deficits by providing funding for specific equipment. Nevertheless, because donor funding for specific items tends to be time limited, or due to a lack of coordination between the funding for different components of a service, or because of other practical problems, the chronic problem persisted. In Nepal, one police officer explained: The problem is with the equipment we have for evidence collection. When the British trained us back then they gave us fingerprinting powder. When it 28 29

Ibid., 35. Law Commission of India, 152nd Report on Custodial Crimes (New Delhi: Law Commission of India, 1994), 13.3.

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ran out, the government did not fund us to purchase more powder. The Danish then gave us funding for this powder. Now the Chinese have given us fingerprinting powder. The problem is our labs cannot test this powder. It is sitting in that suitcase there. In terms of collection of blood samples, for example, we were taught using special tubes. Now we no longer have these tubes so we collect samples with cotton. We have to improvise.30

In the early 2000s in Sri Lanka, the Swedish National Police Board worked with the Sri Lanka police to train 271 “scene of crime officers” (SOCOs) and to establish thirty-seven laboratories across the country to support their work. Unfortunately, an evaluation of this program found that SOCOs’ effectiveness had been diminished due to limitations in resources such as chemicals, laboratory equipment, and vehicles to get to crime scenes, as well as by the failure of the OICs to make use of them, perhaps as a way of retaining control over investigations.31 As at 2007, no SOCO reports had been used as evidence in court proceedings in either of the two locations evaluated (Anuradhapura and Batticaloa). A larger point to draw from these examples is that where operational failures are exacerbated or underpinned by chronic shortages of resources and by material institutional weaknesses, drop-down/fly-in solutions cannot provide a sustainable solution. Insufficient equipment is matched by inadequate training, with frontline low-ranked police having little if any training in conducting criminal investigations, even though they are placed in positions where they are required to produce results and punished when they fail to do so. It thus remains the case that, as the Nepali human rights organization CeLRRd put it fifteen years ago, criminal investigation in Nepal remains “largely confession-centric.”32 In Sri Lanka, a retired senior police officer with whom we spoke indicated that police training still emphasized the development of “hard” paramilitary skills, with relatively little attention to soft skills such as investigation or mediation, an imbalance that we also observed in basic police trainings and that was confirmed in virtually all interviews with serving officers. This emphasis on

30

31

32

Mid-rank officer, Nepal Police, February 2013. At the time of research Nepal had two forensic laboratories in Kathmandu which are insufficient to process evidence for the country, especially given the difficulty of transport in a mountainous country with poor infrastructure. Knud Olander, Camilla Orjeulla, and Rohan Edrisinha, Review of Development Cooperation between Sri Lanka Police and Swedish National Police Board: Sida Evaluation Report No. 07/43 (Stockholm: Sida, 2007). CeLRRd, Analysis and Reform of Nepalese Criminal Justice System (Kathmandu: Center for Legal Research and Resource Development, 1999). See also Centre for Victims of Torture (CVICT), Nepal’s Penal System: An Agenda for Change (Kathmandu: Centre for Victims of Torture, 2001).

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hard skills is no doubt consistent with the context within which police have been operating. In the case of Nepal, that immediate context comprises the ten years of violent conflict that commenced in 1996 with the Maoist insurgency and the state’s violent repression, which included systematic and widespread abuses including torture, arbitrary killing, and enforced disappearances. The cessation of civil war was followed by a period of continued unrest and political instability, with overt political and violent conflict ongoing, particularly in the Terai region. Surveying this post-war period, the World Bank found that “insecurity in Nepal has evolved from a Maoist insurgency to opportunistic violence and criminality. This sense of lawlessness is most clearly manifest in the southern Terai region, where the government has identified more than 100 violent groups and criminal gangs . . . Despite some progress in institutional development and peace building, Nepal remains vulnerable to different manifestations of violence and fragility.”33 In Sri Lanka, policing takes place against a context of more than fifty years of violent conflict. This commenced with the violent Janatha Vimukthi Peramuna (JVP) insurrection in 1971, where police were explicitly targeted and the state responded with extreme violence, followed by a second period of JVP attacks and further government counterattacks (1987–1991). Simultaneously, as part of the violent civil conflict between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE), police were called upon to use extreme violence to quell and repress political dissent, and have themselves been the objects of violence. This conflict persisted for an extraordinary twenty-five years, from 1983 through to its official cessation in 2009 and in some respects beyond.34 Although the most serious human rights violations, including widespread torture, enforced disappearances, arbitrary killing, forced relocation, and sexual violence, were committed by the military and the Special Task Force of the police, the general police force was also implicated in a range of violations throughout the long conflict, including torture. In his 2007 report, the Special Rapporteur on Torture concluded that torture by both

33

34

World Bank, World Development Report 2011: Conflict, Security and Development (Washington, DC: World Bank, 2011), 91–92. On the history of the conflicts see, for example, Samanth Subramanian, This Divided Island: Life, Death, and the Sri Lankan War (New York: St. Martin’s Press, 2014); Jagath P Senaratne, Political Violence in Sri Lanka, 1977–1990: Riots, Insurrections, Counter-Insurgencies, Foreign Intervention (Amsterdam: VU Press, 1997); Jayantha Perera, “Political Development and Ethnic Conflict in Sri Lanka,” Journal of Refugee Studies 5, no. 2 (1992).

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police and armed forces had become routine practice in the context of counterterrorism operations.35 Operating within these environments cannot but affect how organizations train their people and the expectations of how they will behave, and this will continue after the official cessation of war. Irrespective of the official status of the country (war or peace), these patterns and expectations are unlikely to shift quickly. After overt and official conflict has ended, police need to learn to operate in what has become a post-conflict environment. But the type of training they received and expectations developed during overt conflict leave police ill-equipped and poorly oriented when it comes to dealing with criminal investigations, or more generally to interact with civilians in the context of an overall peace. Police and civil society representatives in both Nepal and Sri Lanka repeatedly spoke to us about the need for police to be trained in the soft skills that would equip them to operate within a civilian, as distinct from quasi-militarized, context. The lack of adequate equipment and training is self-evidently linked with torture insofar as they increase the likelihood that personnel will use torture to obtain confessions. At the same time, the relationship goes beyond this direct one, passing in some instances through the intervening variable of corruption. A representative of a human rights organization with whom we spoke in Sri Lanka explained a typical scenario. They [the complainant] take an influential person (for example a priest), they contact a policeman they know. Police is then obliged to them. And they give incentives to the police. The first question the police will ask is, “Do you know the robber? Do you have any suspects?” Then they will say, “Do you have a vehicle we can use? We have no diesel . . .” Then the police have to show they are doing an investigation. They don’t investigate – they just hammer a person. The statement can’t be produced in the courts so then they plant cannabis. If you complain about stolen jewelry, the police will go to people they know and say, “Say this is the person who had the jewelry.” Then the police will take the person [into custody] and say, “The amount is four, give us two and we will let you go.” If not, they will give “proper treatment” [beating]. They just want the person to admit to show the other party.36

In its report on policing and human rights violations in India, Human Rights Watch similarly found that in the absence of adequate equipment, police often required the complainant to fund basic services, like paying for petrol, and 35

36

Nowak, “Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – Mission to Sri Lanka,” para. 70. Interview, Sri Lanka, March 11, 2014.

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that this form of payment easily slipped into “bribes” for an investigation.37 Correlatively, they noted that while bias against marginalized groups no doubt contributed to their overrepresentation among those who were tortured or otherwise mistreated by police, the inability of the poor to pay a bribe or call in a favor was certainly a contributing factor. As police become beholden to private actors, their practices are accordingly corrupted. In her extensive study on policing in Indonesia, Jacqueline Baker similarly linked corruption and the use of torture38, as did Shiva Dhungana in his work on police and Nepal.39 Basil Fernando of the Asian Human Rights Commission suggested that the elimination of corruption in the police force in Hong Kong also saw the elimination of torture, and suggested that in Sri Lanka, a significant proportion of police torture was linked with extortion.40 In drawing this link between the lack of equipment and training and corruption, we have moved from what I called a “supply side” pressure to “demand side” pressures, these constituting the second large class of pressures that shape police behavior and condition the use of torture. Most obvious among demandside factors is the literal pressure to produce results. At the immediate level, this pressure comes from superiors demanding quick results (with less regard to whether those results are correct). The institutional analogue here is quotas for the number of charges that police stations or districts are required to meet, quotas determined and monitored from above, with results tied to the provision of resources to police stations. The pressure may then move out in concentric circles beyond the immediate organizational environment, with both the general public and politicians named as sources of additional pressure. In the case of the general public, there may be pressure to find and charge those responsible for crimes and to punish people that publics feel ought to be punished. In our research in both Nepal and Sri Lanka, security sector personnel and representatives of civil society organizations told us that it is not solely police, but also members of the general public who believe that torture ought to be used in some instances and may even demand its use. In saying this, I am by no means disregarding the many people in each country who oppose torture, many vigorously and placing themselves at grave risk in fighting against it. At the same time, there are also those who look to the police 37 38

39

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Human Rights Watch, Broken System. Jacqueline Baker, “The Rise of Polri: Democratisation and the Political Economy of Security in Indonesia” (PhD thesis, London School of Economics, 2012), 298–313. Shiva Dhungana, “Addressing Corruption in Police Reform,” in Policing in Nepal, edited by Saferworld (London: Saferworld, 2011), 36. Interview with Basil Fernando, February 28, 2014. Notably, Fernando insisted that the dynamic in relation to military torture was very different.

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to inflict torture in certain types of cases and against certain types of people.41 “Hardened criminals” and individuals from lower or marginalized social sectors (drug and alcohol users, those who are seen as poor and uneducated) are among the people for whom torture is, in the eyes of some, an appropriate form of treatment. Indicative is a statement we overheard a civilian making during a visit to a police station in Nepal: “For these types of thieves, legal action is not appropriate. You have to hit them on the hands.”42 On another occasion we witnessed two thieves being brought into the police station who had already been badly beaten by members of the public and then rescued by the police. In another instance, just moments after agreeing that torture needed to be prevented, a former senior political bureaucrat in Nepal told us: “If we follow Scandinavian countries’ approach, [we] can’t manage law and order, rule of law . . . There people feel proud to pay tax to government. But here people feel proud not to pay tax – how can we get by then without torture?”43 These comments resonate with Marnia Lazreg’s observation that when the French systematically used torture to suppress independence movements and preserve imperial rule in Algeria, they bolstered the need for such brutal action through a discourse of civilizational difference.44 Quoting Colonel Antoine Argoud, a French officer who played an active role in the campaign of torture, she portrays how, in the eyes of their torturers, Algerians were not only “eminently suited for terror tactics,” but “[they] called for them; their nature needed them” by virtue of their being “primitives with savage impulses.”45 However, whereas Lazreg’s analysis concerns the use of torture during wars of occupation and across national divides, in the cases we were examining, the “uncivilized other” whose “primitive state” demands torture is a co-national, distinguished not by race, but along various other dimensions such as class, education, criminality, or putative indicators of civilization.46 It is worth pausing for a moment to note how Lazreg’s argument demonstrates the multi-scalar nature of the “causes” or conditions of torture, consistent 41

42 43 44 45 46

As discussed in Chapter 1, public opinion surveys do not provide robust country-specific data that can shed light on opinions in our two case study countries, but data on South Asia does indicate the existence of some support for the use of torture. Notably the 2008 World Public Opinion Survey on torture found the highest support for torture in India. Kull et al., World Public Opinion on Torture, 1. Observation of police station, Nepal, January 2012. Interview, Kathmandu, November 7, 2012. Lazreg, Torture and the Twilight of Empire. Ibid., 88–89. At the same time, in both Sri Lanka and Nepal, ethnic differences may coincide with such judgments about civilizational difference.

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with the overall theory I am arguing in this book. Here, she is arguing that how French military officers made sense of what they were doing played a critical role in perpetuating and sustaining the use of torture, even as her larger argument is that if we are to understand why torture occurs, we need to locate it as a fundamental component of the political logic of neocolonialism or neo-imperialism. In other words, the argument that what “ultimately,” or at the most macro level, underpins torture is a political project or logic does not mean that it is not also conditioned and driven by more local processes, practices, and structures. On the contrary, it is through these that larger projects are mediated and transmitted. Turning back to these sites of micro-politics, during research that we carried out in the northwest of Sri Lanka, the majority of the villagers with whom we spoke said that they approved of police using violence against people who are believed to have committed crimes, as a means of “controlling wrongdoers.” One influential Buddhist monk from the area elaborated: “People do not mess with the army. Nowadays people are losing fear of police officers. They should be disciplined like army soldiers.”47 A female lawyer in the area laughed when we asked whether the police beat people and told us that if a person is arrested for a crime like theft, “This is something you should expect,” and referred to numerous occasions where relatives of a detainee contacted her to tell her that police were beating him. Even the inquiry officer from the regional office of the National Human Rights Commission told us that if they are arrested for doing something wrong, people generally accept that they deserve to be punished by police during their custody, with punishment meaning physical violence. He told us that most of the people who come to see him say, “It is OK to hit us if we have done something wrong, but they hit us for something we have not done . . . if they are the wrongdoers, they won’t come to HRC even if they are tortured.”48 Understood most immediately, such public attitudes constitute another demand-side pressure that police need to negotiate. Perhaps even more important, though, is the normalizing impact that such attitudes have. If the general public believes that torture ought to be used under certain circumstances, it would be extraordinary if security sector personnel rejected this norm. Unsurprisingly, when we asked them directly about their views on torture, virtually all security personnel condemned it and affirmed their commitment to human rights. In more indirect conversation, however, or during our observations, they provided clear signs of how normalized torture in fact is. During informal conversations, police officers communicated that 47 48

Interview, December 21, 2014. Interview, November 2, 2015

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they saw beating and slapping as a normal phenomenon inside the police station. A few complained about human rights activists wanting there to be no beating of offenders at all. They explained that beatings were required to know the real truth, and unless suspects were beaten they would deceive the whole system. Notably, these same officers were proud to recount how many human rights classes they had taken before and after their recruitment as police officers, and that when it came to torture, they were completely against it. During observations of a police station in the Kathmandu Valley, the team observed police dealing with a case of a stolen mobile phone. Someone had come into the station, bringing with him a young man whom he believed had stolen his phone. After some discussion, the police officer told the accused that he should admit that he had stolen the phone, and then turned to the researchers and said, “See how difficult a police job is. We knew that he had stolen the phone as soon as he entered the room, yet he denies it. What else can we do than slapping him to tell the truth in such situations?”49 In a similar vein, when asked about whether he had undertaken any human rights training, a police constable in Sri Lanka told us: Although there are resources and training courses, we have followed these, but you can’t do it like you do it in Western countries. Norway came and did a two months training. How to investigate a criminal without hitting. But the resources in Norway and what we have are different. The way white people behave and the way Sri Lankans behave is different. You can’t take them to rooms and ask them questions. As far as I know there is no such system like this in any Sri Lankan police station . . . There are certain HR rules and regulations but practically it can’t be done, if you do so then the police become helpless. In Sri Lanka, the type of people you have. It is not good to hit people, we also accept that. But when we look at it practically we have to do it. The white man’s way just doesn’t agree with us.50

The apparent contradiction between supporting human rights and also affirming the need to beat certain suspects derives in part from a belief that this type of violence does not in fact constitute torture. Security personnel in both Nepal and Sri Lanka with whom we spoke often insisted that the type of “everyday violence” such as beatings that they were talking about was something quite different to actual torture, which presumably they understood as something more exotic. But it also rests on the view that even if one affirms human rights, they still need to be balanced against pragmatic considerations, and sometimes the latter will win out. As a police officer in Sri Lanka told us: 49 50

Police station observation, December 9, 2012. Interview, December 29, 2012.

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Hitting means they only confess if you hit. So this has not stopped. So you only hit those who are involved in crimes, otherwise you would not get the required information. If you go to talk, saying, “Sir, Sir,” you won’t be able to live. You know the type of people in this area, no? They are well-identified criminals. So you have to be very tough with them.51

The belief that human rights constitute but one consideration, to be weighed against others, of course contravenes the very definition of human rights, which is that they are absolute – “trumps,” as Dworkin famously called them.52 This is especially the case when we are talking about those rights that are absolute, or nonderogable, of which torture is one.53 Nevertheless, as Rachel Wahl found in her research with police in northern India, and as I will discuss, the “relative” understanding of human rights that our interview subjects articulated is far from uncommon, including among those who have undertaken human rights studies.54 The normalization of violence used against detainees also needs to be set against the normalization of violence in the social context more generally. In this regard, the macro conflicts I have discussed, particularly the long-term conflict in Sri Lanka, have shifted the center of gravity with regard to the perception of violence.55 At the same time, our research indicated the existence of a more quotidian relationship between the use of violence, discipline, and the production of civilized subjects. As a psychologist who works with torture victims in Nepal put it: In our context, violence starts at home. The gender violence issues, domestic violence, child rights violations, and so on. This all perpetuates the violence culture. In addition to this, the decade-long conflict has further exacerbated this conflict in the form of political violence. Hence, we have been brought up in such kind of culture. State has limited access to individual and their 51 52 53

54 55

Interview, January 21, 2013. Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978). Derogation is a process set out in Article 4 of the International Covenant on Civil and Political Rights that allows governments to temporarily, in the exceptional circumstance of a “state of emergency,” suspend the application of certain rights. Article 4(2), however, specifies certain rights as non-derogable, meaning that no qualification or limitation can be justified under any circumstances. This short list includes freedom from torture or cruel, inhuman, and degrading treatment or punishment. Wahl, Just Violence. Wahl’s research subjects had all enrolled in tertiary human rights courses. A fascinating ethnographically grounded study of the links between national and local violence, but also linking both with globalization, can be found in Jani De Silva, Globalization, Terror and the Shaming of the Nation: Constructing Local Masculinities in a Sri Lankan Village (Crewe: Trafford, 2005). More generally, on empirical data confirming the hypothesis that war increases rates of civil violence, see Dane Archer and Rosemary Gartner, “Violent Acts and Violent Times: A Comparative Approach to Postwar Homicide Rates,” American Sociological Review 41, no. 6 (1976).

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homes, they cannot prevent all the root causes of ill-treatment, and hence this culture has been transmitted from generation to generation. I would say similarly, police and Armed Police Force are part of this generation. They have been brought up in this culture; they learn such things and get to practice in more authoritative manner once they become officer. They have state power along with it.56

When asked how one might address these issues, he suggested that, “[w]e need to develop some form of non-violence technique, and I believe it has been too late. Now, the violent culture is embedded in our socioculture and the current environment is like this and it would be difficult for state to bring any grassrootlevel changes in addressing such things.” The links he was making between general perceptions of violence and police violence were confirmed in many of our conversations. As a policeman in Nepal said to us, “If the person repeats the mistake the third time then you slap him. When you do something wrong even your parents will hit you. It is a matter of perspective. If you think you received a slap from your parents because they are looking to correct you then it is a good thing.”57 In this regard, attitudes to corporal punishment in schools provide an important window into how many people feel about the use of violence by public institutions. Despite the fact that corporal punishment has officially been banned in Sri Lankan schools since 2005,58 virtually all of the principals whom we interviewed said they used canes to discipline students. When we asked one principal about beating children, he asked in response, “Isn’t it very normal?”59 A Buddhist monk who was the principal of a Sunday school told us, “Children are very scared of me. I beat them with a cane. I ask teachers to frighten students with the cane. Otherwise you cannot control them. We were beaten by our parents. They did it with the good intention of disciplining us. Therefore even today we respect them.”60 Another principal reiterated the monk’s views on the use of corporal punishment: “We know that punishment is necessary for discipline. I have noticed that the teachers who punish more have a deeper understanding of the children and therefore they are more popular in the school.”61 According to 56 57 58

59 60 61

Interview with psychologist in a torture rehabilitation organization, Nepal, October 1, 2012. Interview with sub-inspector of police, January 2, 2012. Department of Education, Circular No.2005/17, Corporal Punishment in Schools, May 11, 2005. At the same time, corporal punishment was banned by the Corporal Punishment (Repeal) Act, No.23 of 2005. Interviewed on November 19, 2014. Interview, December 21, 2014. Interview, November 19, 2014. The view he was expressing was that the teachers who hit children were actually those who were more concerned about their futures.

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another, parents expect teachers to beat their children if they have done something wrong, because this is what they do at home. When asked whether there had been complaints against him for beating the students, he said, “On few occasions . . . but then I explained them why I beat them and they understood.”62 This broad acceptance of the use of violence in schools is something that police brought up in our conversations with them, and not simply to justify their own use of violence, but as evidence of the important role that violence plays in exercising discipline. During a workshop we held with members of the police and the military in Sri Lanka, one officer, who was also a deputy school principal, started to speak about work that he wanted to do to curtail the use of corporal punishment in his school.63 The others in the room insistently responded that were it not for their having been subject to corporal punishment during their school days, they would not be the people they were today. They were certainly making an important point, although perhaps the one that our team took from their comments and the one they intended to convey were somewhat different. In our research in both Sri Lanka and Nepal, we also found that police beat people as a means of what we might term “moral correction.” In Nepal, for example, a police officer who had done extensive work on issues concerning drug use and addiction recounted to us how police picked up young men whom they saw as behaving badly (through alcohol or drug use, or gang membership) and, without pressing any charges, kept them in custody and beat them. They understood what they were doing as teaching them discipline and putting them on a correct moral path. Sometimes they did so at the express request of their parents.64 Discussing the root causes of torture in Nepal, a medical officer told us: We have a social belief that says that a bad person must be beaten up. The public will not accept the police treating a bad person nicely. Likewise, even suspects do not speak unless they are beaten. As an example, I was part of a team that went with OHCHR [Office of the United Nations High Commissioner for Human Rights] at the time to Belbari [Morang District, Eastern Nepal]. A woman had been arrested on charges of murdering her husband. When we arrived there were about 1000 to 1500 people who had taken to the streets to prevent “human rights activists from rescuing a criminal.” Of course there is a possibility that the police themselves had 62 63 64

Interview, January 26, 2015. Training workshop, December 2014, Sri Lanka. Field notes, Nepal, December 2013.

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orchestrated this demonstration to send us a message. However, it would not be surprising if the community acted on its own either.65

Responding to the same question about the root causes of torture, a representative of the National Human Rights Commission in Nepal pointed to social pressure, and provided the following example: “There was a police officer who made a conscious effort to ensure that he abided by human rights norms in his work. He spoke politely with the public and treated detainees well. The community in the area commented on his soft nature, saying, ‘What type of inspector is he?’ and humiliated him.”66 In Sri Lanka, during ethnographic research that we conducted in the northwest of the country, it became apparent to us that police, but also community members, thought that by using violence against certain types of suspects, the police were carrying out an important function of social discipline.67 Inflicting violence was understood as a way of inducing fear and shame, thereby maintaining social restraint and ensuring respect for appropriate social norms. When we spoke with community members, school principals, and teachers about corporal punishment in schools, they told us that it was the role of teachers to discipline young people, including with corporal punishment, so as to ensure that they would develop what are considered to be appropriate social roles and forms of subjectivity. The institution of policing was then understood as a further stage of this disciplinary process, with police expected to humiliate, threaten, and punish people who violated the norms of restraint. In fact, we found that some police officers portrayed themselves as a being on a type of personal crusade to create a disciplined society, describing their job as a great opportunity to gain merit by making society a better place. The way in which villagers described a former OIC of the police station who had been transferred out of the area captures this understanding of the role of police and the meaning of police violence. They told us that when this OIC suspected people of producing or selling illicit liquor, he would have them arrested, shame them in public, and produce them in court with trumped-up charges. Far from being critical of this behavior, though, the majority of the villagers praised his work, admired his methods, and regretted his departure. When people talked about how he publicly shamed suspects, they did so with real enthusiasm. As one village leader boasted, “When he 65 66 67

Interview, Nepal, October 19, 2012. Interview, Nepal, October 4, 2012. For a more comprehensive discussion of this part of the study and the “civilizing” understanding of violence, see Vidura Munasinghe and Danielle Celermajer, “Acute and Everyday Violence in Sri Lanka,” Journal of Contemporary Asia 47, no. 4 (2017).

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raided an illicit liquor brewing place, he used to parade the arrested people through the village to the main road (3–4 kilometers) carrying all the equipment they used to brew the illicit liquor like a herd of buffalos. If you were arrested with two bottles of illicit liquor he would say on the charge sheet that it was five bottles.”68 The chairman of a village development society described a similar, but even more severe incident that took place during the war when the military were involved in controlling illicit liquor: “Wrongdoers were stripped and made to carry all the barrels and gallons of liquor to the police station. It was about five-kilometer walk. On the way soldiers humiliated and beat them. All the villagers were asked to come to the road to witness the parade.”69 Moving from pressure from the public to pressure from political actors, a factor that came up perhaps more frequently than any other in our research was political interference or political corruption. Shiva Dhungana offers an important historical perspective on the relationship between politics and policing in Nepal, tracing the politicization of police to the Royal coup in 1960: the Nepal Police evolved into a repressive institution that enforced the authority of the executives of the day. This development resulted in police personnel, at all levels, perceiving that, as long as they pleased their seniors or political patrons, they were free to do whatever they wanted, regardless of whether it was illegal or immoral. The resulting institutionalization of corruption and misuse of power resulted in many police becoming virtual dictators in their villages. Furthermore, the high-level involvement of the police in protecting and facilitating illegal activities on behalf of the royal family also encouraged the police department to be corrupt from top to bottom. This erosion of police integrity continued even after the restoration of democracy in 1990. This was because the police department remained a tool for the fulfilment of the interests of each new government.70

With this system entrenched, the police force has “increasingly become a service provider for ruling political parties.”71 As he explains, “there is a practice of political and business leaders having ‘agents’ or ‘brokers’ who are close to the police and who negotiate to protect people from investigation or arrest, obtain 68 69 70 71

Focus group discussion, February 14, 2015. Interview, November 23, 2014. Dhungana, “Addressing Corruption in Police Reform,” 36. Ibid., 39.

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information and/or to interfere with evidence.”72 A study on policing in Nepal commissioned by the US Institute for Peace reported that two-thirds of police respondents stated that they had observed instances of political interference, also reporting that police respondents wanted to see strict repercussions for those who interfered with police investigations.73 Although under autocratic political systems the dangers of political control of police are obvious, ironically, the pseudo-democratization in Nepal may have introduced its own distinctive opportunities for and risks of political interference. A retired senior police officer in Nepal argued, for example, that after the (official) transition to democracy, the politicization of police deteriorated, as local politicians interfered with policing in their area by bribing or pressuring police not to take action against their illegal activities. He also spoke about the type of fraternizing that takes place between local politicians and high-ranking police: Generally, after democracy, politicians used to invite high-ranking police officers to their home and party office and show their strength and ability to their political cadres. I would say at that time politician has little knowledge about the repercussion of such votebank politics on the police institutions. It had a chain effect. This trend which started in the early period of democratic period has been institutionalized and I would say it has become a norm now. This has been reflected in the police recruitment, transfers, promotion as well. Range of local and nationallevel criminals have emerged with the ties with the politicians and easily bypassing the police.74

The politicization of recruitment, transfer, and promotion that is mentioned here was an issue that people repeatedly brought up throughout our research in both countries. We heard again and again that the professional standards that were officially held up as the basis for advancement or for obtaining favorable positions were frequently compromised by a system of political favors and connections. Acting at the behest of those with political influence, both inside and outside the organization, including coordinating oneself with their preferences and unethical demands, was a far surer recipe for professional success than abiding by human rights standards. In Sri Lanka, virtually all of the retired police officers to whom we spoke insisted 72 73

74

Ibid., 37. Karon Cochran-Budhathoki, Calling for Security and Justice in Nepal: Citizens’ Perspectives on the Rule of Law and the Role of the Nepal Police (Kathmandu: United States Institute for Peace, 2011), 8. Interview, October 9, 2012.

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that the principal problem was politicization of the police. One retired Senior Superintendent of Police (SSP) told us: Also there are political stooges who are in the high places. DIGs [deputy inspector generals], senior DIGs are all there based on politics. Police officers have changed their stance. Politicians have got their tentacles into everything. They cannot do anything without a politician. Those days an MP never visited the police station but now if the MP asks, the OIC has to go to him. The local politician has a big say in these matters and if the government says something, they have to do it. If they ask that someone be given bail, then they have to give. It’s all based on the MP.75

In the view of some human rights experts, political influence and political control is really the heart of the torture problem. Here, it is important to emphasize that the political interference we are talking about is not limited to cases where there is a direct line of sight between a political figure and the torture of a political prisoner, but concerns the more generalized use of torture that is the subject of this book. I asked one expert who had been working in this field for decades what he thought would be the prospects of a prevention strategy that sought to bring about organizational change in the security sector. He acknowledged that organizational factors mattered, but cautioned that the political establishment would ensure that whatever effort was made to eliminate torture and ill-treatment within the security establishment (the police and military) would be defeated. In any case, he insisted, no one in the security establishment would dare to go against the political establishment as they (the political establishment) had the final say as to who can be in the security establishment.76 In a similar vein, writing about Nepal, Kumar argues that the obvious constraint to reform at present is not the dearth of resources internally and assistance from external sources, but rather the mindset of the political leadership whose understanding of political power remains domination and control. Unless this mindset changes, no amount of reform would be feasible for public service – to which the police service cannot be an exception. Thus far police reform is not on the agenda of the post-conflict state.77

Our empirical research made apparent a range of features of the contemporary social, political, and legal landscape in Sri Lanka and Nepal that condition these pathological relationships between people with political power and 75 76 77

Interview, Sri Lanka, February 12, 2013. Interview, February 28, 2014. Dhruba Kumar, “Police Reform and Military Downsizing,” in Policing in Nepal, edited by Saferworld (London: Saferworld, 2011), 21.

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police, but the problem can only be fully understood when placed within a larger historical context. A number of researchers considering the use of torture in post-colonial contexts such as South Asia point to the legacy of the structure and meaning of policing under the former colonial authority.78 As a senior police officer in Sri Lanka explained to us, by the early 1880s, policing in the UK had undergone significant reforms, shifting from a force used to control populations to one founded on the concept of “citizens in uniform.”79 The only exception to this within the UK was Ireland, where the police were to “exercise power for the sake of the Queen’s name and protect her,” acting as a “political hand,” and as such, having the power to torture people to protect political power, based the concept of “political policing.” It was the model applied in Ireland that was introduced to Sri Lanka. As he put it, “Torture, assault, and degrading treatment, threatening the public, illegal arrests are some of features of the newly introduced system that demonstrated the power of the Empire. The primary roles of the police were to exercise the power as a ‘political symbol’ and ‘intelligence policing’ in order to protect the political power.” This, he insisted, had essentially remained the fundamental structure of policing, despite superficial reforms. Others have observed that this colonial legacy persists insofar as policing continues to be understood as a means of controlling and pacifying populations for the purpose of ensuring that the political and social elite can act without restraint and without the annoyance of interference from the “unwashed masses.” It also persists in the structure of the police force itself (which remains very much a force and not a service), where there is a sharp distinction between the upper tier of officers, once entirely populated by members of the colonial power and now staffed by a local elite, and low-level officers, whose job was and still is to control populations and act at the behest of their superiors. In our research in both Nepal and Sri Lanka we found that such internal organizational hierarchies remained in place, and with them, the habitual casting of aspersions on lower-ranked police (as with those belonging to socioeconomically marginalized groups) for being uneducated and thus more prone to violence. What this assessment omits is that it is precisely this type of brute control that was and remains expected, if not demanded of these lower-ranked police officers, whose formal employment conditions include 78

79

Background texts on colonial policing include Dilip K Das and Arvind Verma, “The Armed Police in the British Colonial Tradition: The Indian Perspective,” Policing: An International Journal of Police Strategies and Management 21, no. 2 (1998); Kirpal S Dhillon, Police and Politics in India: Colonial Concepts, Democratic Compulsions, India Police 1947–2002 (Delhi: Manohar Publishers, 2005). Interview, April 2013.

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virtually no opportunity for career progression and whose informal employment conditions may include acting as the servants or “peons” for more senior members. The observation made by a policing scholar in India, that “the constabulary has been groomed in the existing system to be an obedient, mechanical functionary mostly acting in compliance of a specific order from his superior officer and not doing anything positive on their own initiative or judgment,”80 is apt. Importantly, this hierarchical and degrading culture exists not only in the realm of the ideas that different ranks have of each other, but has a material analogue in the extremely difficult conditions under which low-ranked officers live and work, leaving this stratum of the force ill-placed, in the words of this same commentator, “to be very mindful of its duties to the citizens or to worry very much about the cannons [sic] of integrity and devotion to duty.”81 At the same time, abusive treatment of junior officers, in training and beyond into duty, seems to be fairly commonplace. Some of our interviewees spoke about the denial of food, humiliation, and abuse during their training, treatment that is also discussed by other researchers.82 During our observations of police stations in Nepal, we repeatedly witnessed senior officers addressing juniors in a rude and sometimes aggressive manner, using a derogatory form of the second person pronoun. This same pattern of derogatory address was replicated in the way in which police officers spoke with suspects, unless they were of a higher class. The link between abusive behavior of members of the public and abuse committed against junior officers was one that police themselves made in interviews discussed by Shiva Dhungana in his research on policing and human rights in Nepal. As he puts it, “many new recruits are further abused and humiliated during training. This process appears to be part of the process that indoctrinates officers into showing absolute loyalty toward their senior officers. Moreover, this introduction into policing can also lead some police officers to replicate the behavior of their colleagues and engage in abusive and derogatory acts toward others (including the public).”83 This process of inculcation into the appropriate identity for police officers may also have a gendered dimension insofar as the use of excessive violence becomes what

80

81 82

83

NR Madhava Menon, ed. Criminal Justice India Series: Uttar Pradesh, vol. 3 (Kolkata, India: Allied Publishers Private Limited in collaboration with National University of Juridical Sciences, 2002), 38. Ibid. For example, interview with lawyer for a torture treatment center, Tuesday 29 May 2011; interview with medical professional with extensive experience examining detainees, November 8, 2012. Dhungana, “Addressing Corruption in Police Reform,” 38.

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Rejali calls the “right, manly decision.”84 A human rights activist in Sri Lanka lent credence to this interpretation with his observation that, “[p]eople think that those who do not torture are like girls. Therefore, there are notions of masculinity that are connected with the concept of torture.”85 Discussing the training that new recruits receive, an Inspector in the APF in Nepal described the training as involving “the heights of torture.” When we asked if this experience had changed the way he looked at the suffering of other people, he responded, “It does. It makes us think that a person is not really suffering as much and they can take more. You don’t really care about pain anymore. It makes you less sympathetic.”86 A representative of the National Human Rights Commission in Nepal told us: Officers in the junior ranks go through torture themselves in the way they are treated by their superiors. As an example, a junior officer was beaten brutally by his senior for not following his orders to bring him his boots promptly. The junior officer’s ear was damaged due to the beating. The senior officer later settled the case by giving his subordinate NRs 75,000 [approximately US$ 725]. The junior officer came and requested us to close his case and not take any further action against his senior.87

As police enter into this dense world, the use of torture comes to be normalized. As a representative of a civil society organization in Sri Lanka told us, “It’s easy to change attitudes of new recruits. Difficult to change attitudes of those who are already in the service.”88 Perhaps even more revealing was an exchange between one of our researchers and a senior military officer during a focus group discussion with members of the army in Sri Lanka. A female officer had commented that human rights were not practical in the context of armed conflict, and our researcher responded by asking why she thought this was the case, pointing to the constitutional protections of fundamental rights in Sri Lanka. In response, the senior officer said: [Name], if you join the army the first thing we do is to change the way you speak and the way you think. During the training we break your morale and change the way you are thinking. After that your thinking style will be similar to the other army officers. That’s why you are totally different from these two army lady officers.89 84 85 86 87 88 89

Rejali, “Torture Makes the Man,” 154. Interview, September 9, 2012. Interview, December 27, 2012. Interview, October 4, 2012. Interview, January 2, 2103. Focus group, Sri Lanka, April 4, 2013.

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In this vein and consistent with Martin’s findings, we also found that lowerranked personnel, those operating from the structural position I have been describing, may perceive the demand that they respect the human rights of suspects or convicted criminals as a form of injustice, an intervention that accords rights precisely to those who least deserve them, and disadvantages those who are acting in accordance with the law and the organizational expectations and demands (in this case, them). I found that once their guard was down and they were not trying to convince me, as someone identified with the human rights world, that they were completely supportive of human rights, it was not uncommon for security personnel to complain that people who bring human rights standards to their workplace have no understanding of what it is like to actually do their jobs. As DuBois puts it, because human rights approaches focus on the potential actions of perpetrators (security personnel in this case) and the “plight” of the violated, law enforcement officers experience the concept as one characterized by a “systematic inequity.”90 Again, it is worth pausing and reflecting on what follows from this observation and what does not. Hearing or reading this reaction from security sector personnel, those with strong commitments to human rights might well respond that this is precisely what one would expect from people who do not wish to be held accountable and who benefit from abusing their offices as they do. I have felt, and at times continue to experience, this response myself. Moreover, insofar as security personnel argue that they agree with human rights, but feel that the protection they afford to “wrongdoers” is a form of injustice, human rights advocates might well respond that they are simply betraying their failure to understand that the point of human rights is precisely that they demand certain standards of treatment for all people, irrespective of how those individuals might fare on some other evaluative criterion. That human rights are accorded to all humans irrespective of any status distinction is what distinguishes them from status- or role-bound privileges, or for that matter many other rights that might be reserved for specific groups (workers, residents of a certain place, and so on). As such, calling human rights unjust for this feature of universality is to misunderstand the normative stance that they assert. From the point of view of human rights theory, or human rights law, such a response to the objections or qualifications that security sector personnel offer is manifestly correct.

90

Marc DuBois, “Human Rights Training for the Police,” in Human Rights Education for the Twenty-First Century, edited by George Andropoulos and Richard Claude (Philadelphia, PA: University of Pennsylvania Press, 1997), 320.

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The problem is that by asserting the absolute correctness of the theory of justice that is promulgated by the human rights idea and insisting that these other perspectives are incorrect, this response assumes that we can (and should) cordon off the normative stances that differently situated people take from the situations in which they develop those normative standards. Put otherwise, this response occludes the extent to which the way in which people actually make sense of concepts or norms is correlated with the conditions of their lives. Moreover, taking those conditions seriously is not merely a matter of theoretical nicety, but may provide an orientation that affords more effective means for altering the norms that people embrace or reject. One of the principal arguments of this book is that the epistemological assumption that the norms that people embrace exist in a realm that is logically and structurally distinct from their lived realities does not serve us well in working out how to alter those norms. It leads us to imagine that ideas, attitudes, or beliefs might be transformed in some abstract or ideational realm, and then brought back into the material world to alter behavior. At the same time, it leads us to underestimate the importance of the material or lived realities within which people’s normative positions develop and are sustained. In discussing human rights violations by police in India, Human Rights Watch goes some way in recognizing this interaction between institutional conditions and individual behavior and normative stance, arguing that “misbehavior is deeply rooted in institutional practice.”91 Thus, for example, writing about the particular vulnerability of marginalized groups to a range of human rights violations by police, the report notes that while such discriminatory treatment does stem from the discriminatory biases of police officers, “their vulnerability is also the product of an abusive police culture in which an individual’s ability to pay a bribe, trade on social status or call on political connections determines whether they will be assisted or abused.”92 In a similar vein, the discussion of the reliance on violence (including torture) as a method for crime investigation links this practice with a range of what I have been calling systemic factors, including, at the most immediate level, the unavailability of the equipment and resources for investigating crime and the completely inadequate training that many lower-ranking police officers have received. Similarly, on the basis of extensive interviews with police personnel in northern India, Rachel Wahl developed a rich understanding of both the “flawed political and legal systems” and “the beliefs and conceptions of justice

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Human Rights Watch, Broken System, 5. Ibid.

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that make such systems [of torture] acceptable to state actors and at times, to some members of the domestic public.”93 Critically, Wahl argues that such beliefs and conceptions not only sustain unjust structures, but also arise within these structures. That is, what we refer to for analytic purposes, as the realm of ideas, beliefs, and conceptions is intimately connected with the realm of institutional practices, habits, and structures. She insists, for example, that we misunderstand police opposition to the absolute ban on torture if we interpret this entirely in terms of their desire to pursue their interests without normative restraint (although this is sometimes the case). Rather, in some cases their position arises from a contrary conception of justice that is inconsistent with the conception of justice entailed in the human rights framework, but that emerges from the institutional context in which they are working. Thus, she distinguishes between torture used for instrumental reasons, and torture used for normative reasons, or what we might call reasons concerning values, although she makes the point that in practice, both types of reasons may be at work in any particular instance of torture.94 Instrumental reasons might include using torture for bribes or in relation to corruption, often in the form of pressure from politicians or other powerful actors, as we also found. Normative reasons include torturing suspected criminals as a way of upholding justice for victims, or protecting the security of the law-abiding population. Wahl found that many of her respondents condemned torture used for instrumental reasons, seeing it as “illegitimate,” but accepted if not applauded its use for “normative” reasons, or the “legitimate” use of torture as they understood it, in a manner resonant with the notion of so-called “noble cause corruption.”95 From this perspective, human rights that constrain how police can treat any individual, including serious criminals, are seen as normatively problematic. A police officer we interviewed in Sri Lanka pithily expressed this sentiment when he said, “So this has to be done with good intentions. You need to hit a person to do another person a service. Otherwise if you hit a person because we get mad, that is unfair for that individual.”96 Echoing Martin and DuBois, Wahl reports that her police subjects frequently appealed to the rights of

93

94

95

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Rachel Wahl, “Learning Norms or Changing Them?: State Violence, State Actors, and Human Rights Education in India,” paper presented at the Comparative and International Education Society Annual Conference, New Orleans, March 19, 2013, 39. Rachel Wahl, “Justice, Context, and Violence: Law Enforcement Officers on Why They Torture,” Law and Society Review 48, no. 4 (2014). Wahl, “Learning Norms or Changing Them?,” 16; Wahl, “Justice, Context, and Violence,” 814. Interview with police officer, Sri Lanka, January 21, 2013.

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victims and objected to human rights affording disproportionate concern for criminals over victims. Our research indicated that it was not only security personnel who appealed to this type of alternative ethical framework. In response to a question we asked him about his perception of police, a medical officer in Nepal who had had significant involvement in doing medical examinations of torture victims told us: “The police do, however, have a challenging job. In criminal investigations they need to find information. There cannot just be human rights for criminals but victims need justice too.”97 Coming back once again to my insistence that we need to set people’s normative stances against the material and institutional conditions within which they are making those judgments, Wahl argues that one needs to understand the endorsement of torture as a form of rough justice within the context of a system of largely failed official justice. Thus, in the context of highly flawed criminal justice systems, which suffer from excessive delays, corruption, political interference, under resourcing, and poor administrative procedures, police may see the use of torture as a way of introducing a more immediate form of justice, or punishment for wrongdoing, into the system. She quotes one of her respondents who expressed this view in a somewhat colorful, but pointed way: But the legal way is also a kind of a torture. If police follow the legal way and deposit the money the man was owed with the court, he will have to fight for years to get his money back and this is also a kind of torture, a mental torture. In these simple cases people have to fight for sometimes twenty years. So this legal way is also a kind of torture. So both legal and illegal ways are a kind of torture. If the police start solving cases legally the way the NGOs want the jail would be overflowing. People can be arrested for many things. And the courts will be overloaded.98

One might legitimately object that equating years of waiting for money to be returned with the type of asymmetrical violence that defines actual torture is a travesty. Wahl’s point in quoting this respondent, as I understand it, however, is to convey the highly situational nature of judgments, and the importance of recognizing that specific normative judgments are embedded in larger networks of meaning and practice, which include material and institutional realities. Thus, a statement that at first appears to be nothing but 97

98

Interview with medical professional, Tribhuwan University Teaching Hospital, Maharajgunj, September 19, 2012. Wahl, “Justice, Context, and Violence,” 824.

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a travesty comes to have a richer background and indeed provides us with access into the world in which meanings are made. Although not about torture, a conversation that took place during our observation of a police station in rural Nepal concerning a man who had been brought in for theft about twenty times is indicative of the logic at work here. “I made a proposition to the DSP [Deputy Inspector of Police],” the police officer told us. “We have some drugs in storage since we keep small samples to produce before the courts. I sent the thief out, saying, ‘If you steal again that will be it.’ I sent a person with three grams of drugs and told him to put in the guy’s pocket. He went and caught the offender and put the drugs in his pocket. We then filed a case against him on drug possession. He was sentenced to prison. He was in prison for two years already while I was there. He is married, has a child, and he has called me to tell me that I had helped correct him.” He then turned to us and said, “Tell me do you think I committed a crime here? What could I do otherwise? I had nothing personal against him but he was stealing all the time, he was wreaking havoc in society.”99 That police ought to be the ones administering justice is not simply a view held by police, with many civilians seeing police as the primary service provider in terms of both social and legal services. This is especially so for those who have no other avenues open to them due to their low socioeconomic status. A study on public attitudes to police in Nepal found that “The NP [Nepal police], rather than courts, is seen by most respondents as determining innocence and guilt. More than half of respondents stated that the NP is currently responsible for making decisions regarding guilt and innocence, with only 25.4 percent stating that the courts and governmentappointed judges do so.”100 In this context, we might add that the fact that police take justice into their own hands by no means necessarily implies that their actions are in defiance of other parts of the criminal justice system. Although evidence obtained under torture is inadmissible in both Sri Lanka and Nepal, we were told of a certain tolerance, if not acceptance, among some judges as well as prosecutors. A representative of a torture rehabilitation center in Nepal spoke of the uneven, but generally problematic attitude of judges toward torture. As he put it, “Judges tend to speak the language of the police when it comes to torture.”101 A representative of the National Human Rights Commission in Nepal described lawyers’ unwillingness to seriously engage in a manner that 99 100 101

Police station observation, Nepal, January 2012 Cochran-Budhathoki, Calling for Security and Justice in Nepal, 65. Interview, May 29, 2012.

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would impede torture: “Senior lawyers feel humiliated to go to custody. They only send very junior staff to custody if they are required there. Defense lawyers have a narrow mentality as well as a superiority complex in thinking that prisons and detentions are not a place for them to go to. They also do not complain about the torture that is inflicted on their clients.”102 Particularly in more remote areas, the problem is exacerbated by the close relationships that exist between those who represent these different but linked institutions, a point that, as I noted in Chapter 3, Carver and Handley also made. As a medical doctor in Nepal explained to us, “At district level – chief of police station, chief doctor at hospital, and chief administrative officer all friends. They need to be in order to survive! But this means they cover for each other.”103 Another medical officer based at a university hospital in Kathmandu described how he had submitted reports documenting torture involving highranking officers, but explained that it was his position at the hospital that made it possible for him to do so. By contrast, he told us: The situation is very different in the districts. There is one medical officer in the district. He/she generally lives next door to the police. He/she needs to get along with the police officer there. Directly or indirectly, these officers are influenced by the police. There have been concerns raised by the medical officers regarding their safety and security when giving reports that are contrary to the interests of the police.104

Recognizing the enmeshment of policing within this broader network of institutions, a retired senior police officer who had spoken out publicly against human rights violations insisted in his discussions with us that one could not abstract the police from the rest of the political and criminal justice system in which they were embedded. When asked about what an ideal police officer would be like, for example, he stated: “You can’t have the ideal policeman or policewoman unless you have good governance. The police are not a separate entity, all these are tied up with those who have a say. The police are much connected.” He continued: You see, the police are only one in this thing . . . in this rule of law. There is nothing that the police themselves can do. The Attorney General’s department and the judiciary are also involved. Now we can see what has happened to the judiciary. What’s happened and what is happening. With that goes the rule of law and democracy . . . normally the police are not able to make 102 103 104

Interview, October 4, 2012. Interview, November 8, 2012. Interview, September 19, 2012.

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decisions regarding their actions. So the problem is lack of rule of law and bad governance. I have been involved in many studies like this, especially about the police. This is not something unknown. Hmm . . . yeah, the police, the way they can get on is to please the politicians so no amount of training will help you to do the right thing.105

For analytic purposes, in this discussion I have separated out different types of situational factors – lack of equipment and poor training, political pressure, a postcolonial legacy, a dysfunctional criminal justice system, and so on. But in practice they are experienced by police as a single world. As Beatrice Jauregui, who conducted extensive ethnographic research on policing in northern India, puts it: The [officer in charge] often feels that he must work in ways that seem counter-legal, because he experiences subjection by extreme pressure and works under many constraints of both an “official” and “unofficial” character. On the “official” side of things, the [officer in charge] more often than not expresses feeling hampered by the inadequacies and internal contradictions of legal codes and procedures, especially by the rules of evidence and the clogged court system. On the more or less “unofficial” side of things, the [officer in charge] feels constrained in his ability to adequately address any and all cases requiring investigation because of myriad pressures by external sources of a more “political” nature (to say nothing of other more personal pressures, like those coming from family and other associates). Somewhere in the middle of official and unofficial constraints are the ever-present and often overwhelming problems of lack of resources – personnel and equipment – and what police in northern India generally call bandobast.106

The spontaneous organic metaphor that a Sri Lankan constable used to describe the interconnectedness of the system nicely captures the way in which the different factors mesh: “We are all branches in the tree. You can’t make only the police change and not society. This is like a pyramid; the upper people can’t be changed without changing the bottom.”107

3 WHAT ABOUT AGENCY?

Recognizing the work that the various systemic and cultural factors that I have been discussing do in shaping organizations and the orientation and behavior of the people in them raises some troubling questions about responsibility and 105 106

107

Interview with retired police officer, Sri Lanka, December 13, 2012. Beatrice Anne Jauregui, Shadows of the State, Subalterns of the State: “Law and Order” in Postcolonial India, PhD thesis, University of Chicago, 2010: 278–79. Interview, Sri Lanka, December 29, 2012.

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agency. I have already touched upon these questions in my discussion in Section 2 about how to simultaneously hold one perspective that explains and one that condemns. But beyond the moral complexity this discussion raised lie important questions about the implications of a situational analysis for the way that we think about responsibility and the proper ambit of individual criminal law or other forms of individual accountability. Does acknowledging the importance of situational factors mean that we are treating individuals as automata who passively react to forces that act upon them? Is the implication that individuals are not responsible for their own actions, or that prevention strategies need not be addressed to individual-level factors and targeted at actors? There are, I think, self-evident reasons for rejecting an explanatory system that would force such troubling conclusions. Characterizing us as parts of a deterministic machine does not only fly in the face of what it is to be a human being; to do so also has deleterious constitutive effects. As Hannah Arendt so chillingly argued in The Origins of Totalitarianism, political systems that treat people as cogs in an engine not only deprive them of their humanity, but also undermine their capacity to develop that humanity.108 Moreover, as she insisted in her analysis of the trial of the Nazi functionary Adolf Eichmann, even if the legal, ideological, and political system has been constituted so as to create the impression that people are doing nothing but what is necessary and required, morality and legality still require that we condemn them when they coordinate themselves with evil.109 To avoid drawing the conclusion that perpetrators are absolved of responsibility for their part in atrocities, and avoid it we must, situational factors must then be conceptualized in a manner that does not place them outside individuals, as if such factors and individual agency form a “zero-sum” game. Behavioral outcomes neither are determined solely by situational factors, nor are they the result of the choices of free-floating choosing individuals. Rather, individuals make choices within certain situational, cultural, or structural conditions, which shape but do not determine them. To draw on the terminology used in organizational theory, individuals do not simply react to situational factors; they enact them.110 For completeness, situational factors

108

109 110

For example, “Just as terror, even in its pre-total, merely tyrannical form, ruins all relationships between men, so the self-compulsion of ideological thinking ruins all relationships with reality. The preparation has succeeded when people have lost contact with their fellow men together with the reality around them. For together with these contacts, men lose the capacity of both experience and thought.” Hannah Arendt, The Origins of Totalitarianism (San Diego, New York, London: Harcourt Brace and Company, 1973), 473–74. Arendt, Eichmann in Jerusalem. Karl E Weick, The Social Psychology of Organizing (Reading, MA: Addison-Wesley, 1979).

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must be built into the causal story, but that causal story must also account for the active part that individuals take in perpetuating and reconstructing them. Causality is not unidirectional. Nevertheless, all of us would do well to pause and reflect on the often uncomfortable truth that people’s evaluations of the extent to which people are acting as agents, and thus bear responsibility, are themselves contextual; and this is so both when they are judging others and when they are reflecting back on themselves. As is evident also with respect to our relationship with the wrongdoings or triumphs of the nations or groups to which we belong, we tend to claim more responsibility for those acts we approve than those we condemn.111 Security sector personnel are little different in wishing to see themselves as agentic when they are acting consistently with their explicit moral standards, and at the bidding of external forces when they contravene them. Our interests in preserving our identities as moral agents means that we will slide along this scale as the context shifts. Nevertheless, it is probably true that in almost all cases, our actions are poorly described either as the manifestations of conscious autonomous choice or as system effects. Based on her extensive ethnographic studies of police, and drawing on Bourdieu’s theory of practice, Janet Chan explains this interaction in the following terms: [I]nstead of explaining corrupt police practice in terms of the inculcation of corrupt values among personnel through a vaguely understood process of socialization, we can view personnel as active decision makers who are nevertheless guided by the assumptions they learn and the possibilities of which they are aware. The cultural knowledge they acquire generates schemas and categories; these in turn both help them to organize information and lead them to resist evidence contrary to these schemas. Their awareness of structural possibilities provides “menus of legitimate accounts” (Powell and DiMaggio 1991: 15) or a “vocabulary of precedents” (Ericson et al 1987), which they can use to justify their actions. Hence, institutional practice is partly the product of a “practical consciousness” (Giddens 1984) or a “logic of practice” (Bourdieu 1990:11) that is not based on rational calculations but rather on learned “common sense” and skills. However, practice is also partly guided by the actor’s awareness of how action can be retrospectively justified rationally – that is, what types of justification are organizationally permitted.112

111

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I discuss this at length in Danielle Celermajer, Sins of the Nation and the Ritual of Apology (New York: Cambridge University Press, 2009). Janet Chan, “Organizational Socialization and Professionalism,” in Fair Cop: Learning the Art of Policing (Toronto: University of Toronto Press, 2003), 28–29.

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Following Chan, we might think of situational and cultural factors as the formal and informal rules of the game, which personnel acquire. These rules of the game nevertheless allow for those who have acquired them to make a number of different types of “moves.” Rather than being determined by the rules, they are more like players who have “a feel for the game,” and they work within the rules, while still having the room to play. This helps to explain why not everyone behaves in exactly the same way in the same situation and also implies that altering behavior will not simply be a mechanical process of changing the situation. Rather, transformative strategies need to engage people in context, altering the rules of the game and concurrently the people who interpret, sustain, or pervert these rules. Linking this with the multidimensional situational analyses that have been described in this chapter, we might thus think of individual personnel as making decisions and judgments and taking actions within a field shaped by a number of vectors. These vectors emerge within the different dimensions of the situation, including the fields of politics, the criminal justice system, the broader society, and the security sector organization. The map that ensues from this analysis is a tremendously complex and layered one. It is also one that suggests that to be truly effective prevention strategies have to operate across all of these different dimensions of the situation, and that they need to be crafted in a way that is sensitive to the interaction of these different dimensions. For example, where security sector organizations are completely subordinated to the operations of the political field, seeking to bring about organization-level changes will likely be futile. So long as criminal justice institutions are embedded in societal discourses and understandings that contradict the basic tenets of human rights, security sector reform will be stymied. At the same time, attempts to change norms about justice and rights are likely to find fallow ground where the institutions of criminal justice are under resourced and dysfunctional. And, as the example of international aid programs donating fingerprinting powder illustrated, patchwork enhancements of specific institutional failures will not achieve the comprehensive reform required. Since the ultimate goal of this book is to contribute to human rights advocates crafting the most effective prevention strategies, in Chapters 6 and 7 I will come back to begin to think through the more practical implications that this picture suggests. But before doing so, I want to take a step back and reflect on the human rights field itself in light of these discussions. For, as Chapters 1 and 2 indicated, a significant proportion of human rights prevention work has not been characterized by an attention to systems or the

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situational factors that condition torture. On the contrary, there has been a significant focus on criminalizing the actions of individual perpetrators. As such, before I turn to think about how my arguments about the importance of situation to the production of torture might be useful to human rights practitioners, I want to consider what might impede such uptake.

Vignette 5

I’m sitting in my office in Sydney doing some administrative work for the project – of which, along with the anxiety that is par for the course, there is plenty. The phone rings – private number. It’s someone cold calling on behalf of a well-known international human rights NGO. They have no idea that I am someone who works in the field, so I decide to just carry on the call under the guise of anonymity. I think on the spot that it offers me a rare opportunity to do a little unplanned research on how human rights organizations represent themselves – the types of stories that they tell when they are trying to enroll the public into their causes. The reason for the call is – I gather from the outset – to ask me to make a donation to support the organization, but to get me there the person on the other end clearly believes she needs to bring me on board and have their work matter to me. The young woman starts by telling me a little about how the organization has been exposing horrific levels of violence against women in the north of Mexico. She doesn’t spend a lot of time explaining the type of research they have been doing – this presumably being the type of information unlikely to keep the average person on the phone. Nor does she tell me anything broader about what is happening in the places where this violence is occurring – although, from what little I know about the subject, some of the worst violence, the spate of femicide in particular, is taking place in the areas where multinational companies have set up maquiladoras (assembly plants) to take advantage of the special low-tax, low-regulation free trade zones and the glut of cheap labor. This, combined with the vigorous drug trade, the ready availability of guns in a virtually unregulated market, weak governance, and political corruption, creates fertile conditions for violence against the women drawn by the possibility of earning a regular, albeit exploitative wage. These contextual conditions vaguely occur to me when she mentions that this is what she is going to tell me about, but none of them turn up in our 186

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conversation. What she wants to tell me about are the “disgusting men” who are committing violence against these women, and that we need to put these disgusting men away. I’m a little taken aback that it is to my disgust that she is appealing. I’d never really thought about disgust against perpetrators being the foundation for human rights activism. I hear her out though, before declining to donate. I’m left not disgusted, but troubled.

5 Agents, Structures, and the Social Imaginary of Human Rights

1 AN AFFINITY FOR AGENTS

In the final chapter of The Lucifer Effect, the book that he wrote thirty-six years after the Stanford prison experiment, Phil Zimbardo concluded that although human behavior is always subject to situational factors, “traditional analyses by most people, including those in legal, religious and medical institutions, focus on the actor as the sole causal agent.”1 Zimbardo does not explicitly mention people working within a human rights framework, but we might well ask whether human rights approaches similarly foster a focus on individual-level causality. If the answer to this question is yes, and I will argue that it is, it would be useful to understand why this is the case, or what makes it the case. Is there something about the way in which the human rights framework understands the world in general and wrongdoing in particular that shapes the types of causes on which it tends to focus? And, finally, if Zimbardo is correct in observing the tendency among dominant approaches, including human rights, to focus on the individual as the sole agent, then what alternative frameworks or broad approaches would support a more situational focus for prevention? It is these questions that are the concern of this chapter. In Section 2, I return to questions that I opened up in Chapters 1 and 2 concerning the type of causal stories that underpin the dominant approaches to torture prevention. From this analysis, I draw the cautious conclusion that to a significant extent, although by no means totally, human rights approaches have favored a focus on agent-level causality and have, correlatively, not adequately or sufficiently attended to situational factors. By adequately, I mean that they have not provided the level of attention merited by a comprehensive analysis of the causes and 1

Zimbardo, The Lucifer Effect, 445.

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conditions of torture of the type set out in the previous two chapters. By sufficiently, I mean that prevention approaches have not taken on, or sufficiently sought to address situational factors, to the detriment of their effectiveness. In the absence of empirical data indicating what would be achieved were prevention to embrace a more comprehensive situational focus, this latter contention is obviously hypothetical, and my intention in making it is to urge those in the field to expand our situational focus, or to experiment in ways of doing so. Section 3 is then dedicated to trying to understand why a human rights approach may foster a greater focus on agent-level causality. I do this by seeking to elaborate the “social imaginary” of human rights, or the basic schema that underpins how we imagine our social existence and the common understandings that underpin how we undertake our common practices.2 My contention is that as a distinctive approach, human rights entails, or has historically entailed, a social imaginary in which the autonomy and agency of the individual occupies a privileged position and, as such, the types of approaches that flow from the human rights project have, to a significant extent, been shaped by this ontological privileging of autonomous individuals. To make explicit the relationship between the social imaginary and the way in which the human rights project functions, I elaborate three registers at which this social imaginary constitutes the human rights field and is in turn reconstituted by it. The first register we might call the philosophical register. Here, I argue that the human rights idea was forged from the notion of the primacy and autonomy of the individual. According to this ontological schema, individual humans are understood as unique sites of possibility and responsibility, agents who can be logically abstracted from the material conditions within which they are located. Correlatively, other parts of the world, such as structures, materiality, and systems, are cast as objects of human consciousness or tools for human manipulation and implicitly excluded from the causal story, written in only and at best as auxiliary to human choice and action.3 Within this social imaginary, the distinction between human consciousness, as the site of

2 3

Charles Taylor, Modern Social Imaginaries (Durham, NC: Duke University Press, 2004), 23. This is well captured by Durkheim in his characterization of the dynamics of social transformation: “[I]t is clear that the impulsion which determines social transformations can come from neither the material nor the immaterial, for neither possesses a motivating power . . . They are matter upon which the social forces of society act, but by themselves they release no social energy. As an active factor, then, the human milieu itself remains.” Emile Durkheim, Durkheim: The Rules of Sociological Method: And Selected Texts on Sociology and Its Method, translated by Sarah Solovay and Henry Mueller (New York: Free Press, 1966), 113.

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subjectivity and autonomy, and matter or body, as the inert object of consciousness, is taken as axiomatic. The second register at which the imaginary operates moves from an abstract logic to the operationalization of that logic in practice. Here, I argue that the domination of the human rights field by legal professionals, trained to understand responsibility in a distinctively individualistic manner, has reinforced and operationalized the philosophical emphasis on individual agency. The third register is the metaphoric, in which the narratives of human rights violations are animated by clearly defined perpetrators and victims. This narrative form has a powerful moral appeal and, as such, has been favored by human rights organizations seeking to attract broad popular support. The problem is that telling and retelling the story of torture in terms of evil perpetrators and innocent victims reinforces a causal explanation based on individual-level factors and occludes other ways of understanding the etiology of torture. Through examining these three registers, I seek to make explicit the centrality of the notion of the individual moral agent in the philosophy and operation of human rights. In the final section of the chapter, I begin the work of identifying alternative ontological frameworks that might support a social imaginary more hospitable to conceiving of causality in a manner that makes space for situational factors in the production of torture and that could, as such, support more capacious prevention approaches. Such frameworks will have to meet two criteria. First, they will need to offer a way of reimagining the relationship between individual human agents and other material, structural, or situational factors in a manner that does not reduce causal agency to individual human consciousness. At the same time, they will need to do so in a manner that does not erase the role that individual humans play in the respect or violation of human rights, or in a manner that denies or diminishes human responsibility. I include this second criterion in recognition of our basic ethical intuitions about the importance of holding individuals accountable for their actions and because holding perpetrators of grave wrongdoing responsible is one way of upholding the dignity of victims. Moreover, the condemnation of individual wrongdoers plays a constitutive role in establishing a system of public ethics that condemns certain types of action, in this case torture.4 More pragmatically, given our strong intuitions about individual responsibility, the degree to

4

Since moral and legal condemnation also plays this constitutive role, meeting the ethical imperative of condemning individual wrongdoers while developing effective systemic approaches to prevention requires a clear distinction and distribution of labor between punishment and prevention.

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which our conceptions of ourselves are tied up with the idea of the individual agent, and the distinctive ontological priority of individual agents in the human rights framework, any social imaginary that does not incorporate an agency-level account (albeit in a modified form) is unlikely to have any purchase among those committed to human rights, irrespective of its preventative effects.

2 AGENCY- AND SITUATION-FOCUSED UNDERSTANDINGS OF TORTURE

Let us commence by coming back to the question posed by Zimbardo’s statement concerning most approaches to torture. Is the human rights approach, like the others he mentions, agent-focused? In one sense, one might respond by insisting that by definition the human rights approach to torture must be systemic or situational, insofar as acts of violence only count as torture when they are carried out by state agents. As such, torture is always understood as an institutional practice. Another way of putting this would be to say that torture is always understood as the outcome or manifestation of a larger official program or policy, even if that policy is communicated indirectly, through expectations and implicit authorizations.5 This response by definitional fiat undoubtedly captures a certain truth. No one would dispute the fact that in many, if not most cases, the lower-level operatives who actually carry out torture are not acting at their own behest. But the fact that torture is defined as an institutional practice does not in itself tell us a great deal about the type of causal analysis that human rights approaches bring to their prevention efforts. For example, one could acknowledge the limited independent agency of lower-level personnel, but then simply transfer the responsibility up the chain to others, who constitute the real agents, whose preferences, decisions, and actions (principally taking the form of orders) are the source of torture. What would follow, consistent with the doctrines of command responsibility and the rejection of the “higher-orders” defense, would be an analysis that located different agents each bearing a particular part of the responsibility. One could, in other words, affirm that torture is a state crime while nonetheless retaining a causal narrative that privileges the decisions and actions of individual agents. While institutional in one sense, such an analysis nevertheless narrows the aperture of the causal story in a way that occludes a range of situational factors, or casts them as mere tools that operationalize agents’ 5

Kelman, ‘The Social Context of Torture.”

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decisions. Agents would then remain the ghost in the machine, even if we recognize that components of the machine are involved in the production of torture. Once one understands what Zimbardo means by a situational focus, however, one sees that the definitional attention of human rights to acts of an institutional character does not in itself render its approaches situational. A more rigorous way to work out what type of understanding of causality human rights approaches take in regard to torture is to return to the principal modalities of prevention discussed in Chapter 1 and ask how they place their lens. Insofar as I tried to make explicit the Theories of Change that underpinned prevention strategies, I have already partially conducted this exercise. The conclusion I drew was that they included an assortment of agent-focused and situation-focused approaches. Some self-evidently attend to situational factors. For example, non-accusatory monitoring squarely attends to conditions of detention. Similarly, in both research regarding the use of torture and recommendations for prevention, the Special Rapporteur on Torture attends, as a matter of course, to issues such as the admissibility in trials of evidence obtained under torture, the role and responsibilities of the legal profession, the judiciary, and medical officers, access to detainees for families and civil society organizations, and so on. At the other end of the spectrum, human rights training would seem, self-evidently, to be agent-focused, insofar as it seeks to alter the normative orientation of individuals so as to influence their actions. What about the criminalization (and potentially the punishment) of perpetrators? In the first instance, this would appear to be an unambiguously agentfocused approach, especially if one understands punishment as a form of specific or general deterrence that achieves its effect by altering the incentive structure that individual agents adopt when they make decisions about how to act. If, however, we adopt a more expressive or performative understanding of criminalization and punishment, we understand it as an approach that seeks to alter the normative environment. Thus, particularly in contexts where violations have been systematic, criminalization may constitute a means for transforming the collective consciousness of a people, as Leora Bilsky argues, or of sending the message that impunity has to give way to accountability, as Meg Penrose argues.6 Understood thus, criminalization addresses what we might think of as a soft or cultural dimension of the situation that shapes individuals’ judgments, choices, and actions. Legal sanctions are thus conceptualized as 6

Leora Bilsky, Transformative Justice (Ann Arbor, MI: University of Michigan Press, 2004); Penrose, “Impunity-Inertia, Inaction, and Invalidity.”

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constitutive rather than reactive, and not merely at an individual, but also at a collective level.7 Nevertheless, as a number of commentators on international criminal law have argued, insofar as criminal trials narrate a theory of history, or constitute a theory of wrongdoing, they tend to do so in a manner that privileges the role of agents. Assessing the theory of history and causality assumed in international criminal law, Gerry Simpson, for example, contends that the juridification of histories that illuminate the role of elites and mandarins and obscure the everyday and the social “has resulted in histories that favour a particular genus of human action, namely, the deliberate and premeditated.”8 Trials, in other words, draw on narratives that emphasize the role of distinct agents and then further reify them through the process of juridification and legal reification. Simpson quotes Richard Evans’ succinct portrayal of the distinctive manner in which criminal law must render history, as that of “morally and politically autonomous individuals, whose decisions reflected in the first place the peculiarities of their own personalities rather than wider forces of any kind.”9 Indeed, for Evans, criminal trials and historians have incompatible approaches to evidence, incompatible epistemologies, and incompatible methods, necessarily leading to legal narratives’ distortions of history in all its nuanced complexity.10 In this regard, Evans belongs to a broader group of critics who contend that criminal trials inevitably fail to produce adequate narratives of history, and their attempting to take on this broader constitutive or narrative task generates distinctive risks.11 This position was succinctly, if harshly captured in Clifford Geertz’ assessment that “whatever it is the law is after, it’s not the whole story.”12 Representing the position of legal liberalism, Hannah Arendt’s criticism of the attempts of criminal trials to expand their gaze beyond the individual accused was based not on her fear that their so 7

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9 10

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Laurence Tribe well articulates the importance of recognizing the constitutive work of actions as distinct from their instrumental value in Laurence H Tribe, “Technology Assessment and the Fourth Discontinuity: The Limits of Instrumental Rationality,” Southern California Law Review 46 (1972). Gerry Simpson, “Linear Law: The History of International Criminal Law,” in Critical Approaches to International Law, edited by Christine Schwobel (Abingdon and New York: Routledge, 2014), 164. Richard J Evans, In Defence of History (London: Granta Books, 2001), 161. Richard J Evans, “History, Memory, and the Law: The Historian as Expert Witness,” History and Theory 41, no. 3 (2002): 330. See Richard Ashby Wilson, Writing History in International Criminal Trials (New York: Cambridge University Press, 2011), 6–12. Clifford Geertz, Local Knowledge: Further Essays in Interpretative Anthropology (New York: Basic Books, 1983), 183.

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doing would damage history, but that it would damage the legal process and the integrity of law. Although her analysis of the Eichmann trial is best remembered for her thesis on the banality of evil, her principal objection to the trial was precisely that it confused history with law and thus represented an abuse of legal process. “The purpose of a trial is to render justice, and nothing else,” she insisted, such that “even the noblest of ulterior purposes . . . can only detract from law’s main business: to weigh the charges brought against the accused, to render judgment and to mete out punishment.”13 Certainly, given that criminal guilt requires that the accused be found responsible for the actions he or she took, any narrative that seeks to locate those actions within a broader set of situational factors is likely to undermine what the prosecution needs to achieve. And where the defense introduces such a narrative, it is open to accusations of bad faith, with Slobodan Milosˇevic´’s extended recourse to a historical and geopolitical analysis of the conditions of the Balkan Wars affording a particularly egregious illustration.14 Again, I want to make it very clear what it is that I am arguing here and what I am not arguing. Criminal trials and punishment of those who commit, or contribute to the commission of torture serve critically important purposes, and perpetrators should be held responsible for, and punished for their actions. As I will argue in this chapter, however, we need to draw a clear analytic distinction between the reasons we have for holding individuals responsible for torture through criminal prosecutions, and what might be required to effectively prevent torture. By holding these two logically distinct, and allowing that criminalization and punishment serve specific goals and protect specific principles, we can devise prevention strategies on the basis of an analysis of what will be most effective and be freed up from also needing to ensure that our prevention strategies serve those aims served by criminalization and punishment. Indeed, being explicit about this distinction and preserving the value of punishment distinct from prevention will be important in shielding situational approaches to prevention from the accusation that they let perpetrators off the hook, or that they erode individual accountability. As I argue throughout this book, if a situational analysis is to be accurate, and not only ethical, it must recognize agent responsibility. Here I am going a step further and arguing that the recognition of individual responsibility that properly falls within the domain of punishment on the one hand, and the type of analysis of causality that may be most conducive to effective prevention on 13 14

Arendt, Eichmann in Jerusalem, 253. Marlise Simons, “Milosevic Opens His Defense Case by Going on the Offensive,” New York Times, September 1, 2004.

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the other, need to be kept distinct. To use the language I introduced earlier, they need to be located as distinctive system purposes. Although prevention in our sense was not her concern, Arendt’s analysis of the Nazi war criminal Adolf Eichmann can illuminate what I am trying to get at here. When she suggested that the evil that underpinned Eichmann’s actions was “banal,” what she meant was that those actions were not motivated by strongly held convictions or malevolent intentions;15 it was rather his failure to think that allowed Eichmann, and so many like him, to commit horrendous acts without recognizing the meaning of what they were doing. Her argument about Eichmann’s thoughtlessness did not stop here; that is, at a diagnosis that the problem was his failure to think. It rested on a far wider-ranging theory about how the conditions of totalitarianism (and beyond this, some aspects of modernity) gave rise to an inability to think and to judge. In this sense, she located the phenomenon of him acting as he did within a constellation of situational factors concerning ideology, political organization, and so on.16 At the same time, there was no question in her mind as to whether he ought to be punished for the actions that he took. Nor did she doubt that the purpose of the court in Jerusalem was to judge him as an individual for his acts.17 In this regard, she decried the confusion in legal circles about the meaning and usefulness of punishment, but applauded the court quoting Grotius’ explanation in its judgment. As she put it, punishment was necessary “to defend the honor or the authority of him who was hurt by the offence so that the failure to punish may not cause him degradation.”18 Doubtless Arendt had other understandings of the principles that punishment serves, but prevention was certainly not among those she had in mind. Turning back now to the prevention strategies and the type of causal focus they take, accusatory monitoring (or naming and shaming) is difficult to classify as situation- or agency-focused because its aim is to provoke

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Although Arendt’s analysis of Eichmann as not harboring malevolent intent or being a committed anti-Semite has been thoroughly refuted by more recent historical research, the thrust of her analysis remains relevant and useful. For a counter history of Eichmann and criticism of Arendt’s understanding, see Bettina Stangneth, Eichmann before Jerusalem: The Unexamined Life of a Mass Murderer, translated by Ruth Martin (Melbourne: Scribe, 2014). On the connection between thoughtlessness, evil, and totalitarianism, see also Hannah Arendt, “Thinking and Moral Considerations: A Lecture,” Social Research 38, no. 3 (1971). As she put it in the final verdict, she would have commended to the court, “We are concerned here only with what you did, and not with the possible non-criminal nature of your inner life and your motives or with the criminal potentialities of those around you.” Arendt, Eichmann in Jerusalem, 278. Ibid., 287.

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authoritative actors to take actions and bring about changes in their laws and/or policies. In itself, the strategy does not specify the types of changes that ought to be made. It could thus, in principle, be deployed to support situational or agent-focused approaches, depending on whether states were being called to prosecute perpetrators or address the conditions of detention and the organizational structures and processes of the security sector. Nevertheless, there has historically been an emphasis in campaigns on the importance of punishing perpetrators. On the face of it, this dual preventative focus on situations and on agents would seem to strike a balance appropriate to the type of causal story that I have been developing in which individuals act but they act within situations that are not, to paraphrase Marx, of their own choosing. Moreover, because we do not have accurate data about how, when, and to what extent the different types of preventative approaches have been used, we ought to be wary about making comparative claims that would suggest that the human rights movement had favored one or the other focus. Nevertheless, I think we can tender some more definitive, albeit cautious, claims. First, particularly with the ascent of international criminal law, and given the emphasis that has been placed on criminalization and punishment of perpetrators both in international and domestic law and in naming and shaming campaigns, the human rights movement has placed significant attention on the causal role of agents. This may change as the OPCAT starts to take effect, particularly if states that have ratified it introduce effective NPMs and use the framework of monitoring to undertake a comprehensive situational analysis. To date though, this has not occurred. Second, while attention has indeed been paid to situational factors, this has for the most part not been preceded by a sufficiently rich and robust empirical analysis of the circumstances within which torture occurs and of what holds them in place, or at least not with the depth and breadth that would be required to furnish a full situational account. If the starting point of a prevention approach was a broad and capacious situational analysis – one that attended to the full range of conditions and causes – then one would anticipate the development and deployment of prevention approaches seeking to bring about changes across that broad range of situational factors. If we go back to the ecological map that I discussed in Chapter 3, which included organizational, legal, social, cultural, political, and ideological factors, or if we think about the various factors discussed in the previous chapter, it would seem that the greatest attention is paid to factors at the legal level; for example, the admissibility of evidence obtained under torture, with some attention to

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the physical conditions of detention. Many of the other situational factors discussed in the previous two chapters receive relatively less attention. Moreover, where prevention approaches have sought to alter situational factors, the principal mechanism they have adopted has been legal reform. Recall that in my analysis in Chapter 2 of the two components that make up any ToC, I pointed out that diagnosing the cause of the problem that needs to be addressed only fills out the first half of any comprehensive ToC. In this case, the problem is that even where prevention strategies are strong on diagnosing the situational problems (as one sees, for example, in the country reports of the Special Rapporteur on Torture), the types of strategies they then deploy to address those situational factors tend to be fairly limited, and overwhelmingly operate through the medium of law.19 But as we saw in Chapter 2, law is a limited steering mechanism, especially when it comes to addressing many of the more complex situational factors that are critical in conditioning torture. In this regard, Jutta Brunne´e and Stephen Toope have argued that despite the proliferation of strong international and even domestic laws banning torture, in the absence of a strong community of practice, the norm against torture cannot be considered as having acquired the status of obligatory.20 Their analysis is thus fully consistent with Carver and Handley’s finding that for legal reforms to be effective, other changes, including shifts in the broader normative and formal and informal institutional environment, need to take place. The problem to which we consistently return is that altering normative and institutional environments is extremely difficult, especially where they are rooted in everyday practices and taken-for-granted ways of making sense of the world. Indeed, this very difficulty may in part explain the regularity of the recourse to criminalization as an accessible, albeit perhaps an insufficiently effective, strategy for trying to achieve normative and institutional change. The reliance on legal steering is certainly not universal, with bodies such as the CPT, or the new NPMs established under the OPCAT, also seeking to bring about organizational reform by working with state authorities to address specific problems. Nevertheless, if one compares the type of work conducted under the banner of human rights with other approaches to institutional reform or behavioral change, the relatively high reliance on law in the human rights world becomes more apparent. In a similar way, the distinctive

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On the legalization of human rights, see Meckled-Garcı´a and Cali, The Legalization of Human Rights. Jutta Brunne´e and Stephen J Toope, Legitimacy and Legality in International Law: An Interactional Account (New York: Cambridge University Press, 2010), chapter 5.

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attention to individual agency that I am attributing to human rights approaches becomes more evident if we juxtapose them with, say, the prison reform approaches, which belong to a broader body of approaches we might call “good governance” or “modernization.” Consistent with the nonaccusatory approach to monitoring, these tend to pay far more attention to primary prevention, structural, and systemic factors and to recognize how critical these are in bringing about sustainable change.21 It is important that I be clear here, and neither overstate my case nor create straw men out of human rights advocates and organizations so as to establish a foil to my argument. I am not arguing that human rights-based strategies to prevent torture ignore situational factors, nor that they operate on the basis of a causal story that uniquely attends to the role of individuals. Rather, my argument is that in the light of what we know about the role of situational factors in producing and sustaining institutional violence, and in view of the resistance of torture to the enormous efforts of anti-torture advocates, there is good reason to hypothesize that human rights approaches have paid insufficient attention to the full range of situational factors, or correlatively, preventative strategies have placed too great a focus on individual agents. Moreover, there is good reason to conclude that there has been an overreliance on legal reform as a strategy to address the conditions that authorize, legitimate, normalize, and create opportunities for the occurrence of torture. The positive correlate of these hypotheses, as I concluded in the previous chapter, is that torture prevention would benefit from greater attention both on how situational factors contribute to the persistence of torture and on how we might effectively change these situational factors. At the same time, and in recognition of the fact that there are approaches within the field that take a situational approach, they would benefit from the explicit articulation of a richer conceptual framework to undergird the logic of the Theories of Change that they instantiate. It is this type of expansion of attention in how we research torture, how we understand its causes, how we go about trying to alter those causal factors, and

21

One piece of evidence for this relative difference in emphasis is that whereas there are a handful of evaluations of non-accusatory monitoring in the human rights field, as discussed in Chapter 2, in the cognate field of independent prison oversight bodies, one finds a comprehensive literature assessing and evaluating different methods of structural reform and recommending best practices. Monitoring specifically for torture is also usefully located within a broader literature on the role of external bodies in prison oversight. On this see Deitch, “Annotated Bibliography on Independent Prison Oversight.”

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how we justify situational approaches that this book is advocating. To this end, Chapter 3 sought to more clearly articulate what is meant by a situational approach to the causation and prevention of torture and to provide the empirical evidence that substantiated the validity of this approach. Chapter 4 discussed several examples of close empirical research to illustrate what a more expansive research agenda might look like and the types of situational factors that operate in contexts where torture is endemic. And in Chapters 6 and 7, I will explore some ideas for how we might think about addressing these situational factors. For the moment, though, I want to pull back from analytic and strategic questions of what we have been doing, or ought to be doing, and to place our attention on the field of human rights itself. My objective in what follows is to probe the relationship between human rights as a distinctive framework for conceptualizing wrongdoing and the type of analysis of causality that it produces. 3 THE SOCIAL IMAGINARY OF HUMAN RIGHTS

(i) The Idea of the Social Imaginary Although today human rights have virtually become the hegemonic framework for conceptualizing state wrongs, they represent just one among a range of approaches that are oriented to changing the social and political order with a view to improving the lives of all human beings.22 By placing human rights alongside other approaches, for example Marxism or religiously based visions of justice, we are able to more acutely recognize that the human rights approach has a distinctive logic. What interests me here is trying to discern what types of assumptions and understandings about the world shape what can and cannot be done and what is and is not done under the banner of human rights, and what those working within the human rights frame are thrown to do and not to do. To capture the distinctive way in which the human rights project is organized, the assumptions that underpin it, and the particular manner in which it institutes social change, I draw on the concept of the social imaginary.23 22

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Finding a formulation for what is common to these projects without importing the assumptions of any one of them is challenging. As such, I adopt a very general term of “improving lives” rather than referring to them as, for example, emancipatory projects, or projects promoting “justice”, “dignity”, or any other term that might carry particularistic meanings. I could also have used the concept of political rationality as articulated by Michel Foucault to capture what I am theorizing here. Political rationality is understood as a distinctive form of normative political reason organizing the political sphere and the modality of governance, as well as governing truth criteria, intelligibility, and what can be said. I prefer the term “social imaginary” as I see it as more inclusive. See Michel Foucault, “Politics and Reason,” in

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Drawn from ideas about the imagination, perception, and the imaginary developed by theorists as diverse as Spinoza, Kant, Hume, Heidegger, MerleauPonty, and Lacan, the contemporary rendering of the “social imaginary” has been developed most extensively in the work of Cornelius Castoriadis and Charles Taylor.24 For our purposes, I will adopt Kathleen Lennon’s definition of the imaginary as “the shape or form in terms of which we experience the world and ourselves; a gestalt that carries significance, affect and normative force.”25 The social imaginary, then, refers to this form of gestalt that shapes our experience of the world, but in a way that is shared and not purely individual. The relationship between what we might think of as the individual imaginary and the social imaginary is a complex one, insofar as part of what is at issue in invoking the idea of a social imaginary is the mediating role that supraindividual meanings always play in individuals’ experience of the world, even where it most feels like their own individual and subjective experience. At the same time, these supra-individual meanings have no existence in a separate ontological realm, that is independent of the individuals who are having experiences, speaking, and acting.26 As Taylor defines it, the social imaginary refers to “the ways people imagine their social existence, how they fit together with others, how things go on between them and their fellows, the expectations that are normally met, the deeper normative notions and images that underlie these expectations . . . that common understanding that makes possible common practices and a widely shared sense of legitimacy.”27 Evidently, the term does not simply provide a name for a concept or phenomenon, but carries with it a strong set of theoretical claims about the relationship between experience and reality, individuals and the context within which they live. It implies that not only the shape, but the very possibility of experience is dependent on the prior existence of meanings, forms of organization, and patterns of relationship. As soon as we speak of the social imaginary, we are asserting that the relationship between subjects and the world that they encounter is a mediated one. People do not, in other words, encounter objects in themselves, perceiving them in the form of sensory data that is itself meaning-

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Michel Foucault: Politics, Philosophy, Culture: Interviews and Other Writings, 1977–84, edited by L Kritzman (New York: Routledge, 1988). For a clear statement of Taylor’s use of the term, see Taylor, Modern Social Imaginaries. For Castoriadis, see Castoriadis, The Imaginary Institution of Society. Kathleen Lennon, Imagination and the Imaginary (London: Routledge, 2015), 73. Castoriadis characterizes the relationship between the individual and the social as interdependent or “leaning on,” such that what is possible for the individual is shaped by the social imaginary but at the same time, it is in part the creative imagination of the individual that institutes and transforms the social imaginary. Taylor, Modern Social Imaginaries, 23.

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less and then endowing them with meaning that they might generate for themselves or borrow from others.28 Rather, our very ability to have experience in the first place is always already endowed with meanings – meanings that define what shows up for us, the types of things that objects or experiences are, the types of relationships that exist between them, and, importantly, how we evaluate them and what we feel about them (hence the reference to normativity and affect in the definition). That such imaginaries are social and not individual denotes the imbrication of any individual experience of the world in a set of shared (though not necessarily identical) meanings. The social imaginary should not, however, be conceived of as some type of structure that individuals passively acquire and that then determines the quality and shape of their experience. The relationship between the social imaginary and human subjects is rather co-constitutional. Castoriadis explains this by describing the social imaginary as both instituted, meaning that subjects encounter it more or less as the condition of the world, and instituting, meaning that as subjects act and speak, they bring this meaningful world into existence and possibly transform it. As he puts it, the social-historical is “on the one hand, given structures, materialised institutions and their works, whether these be material or not and, on the other hand, that which structures, institutes and materializes . . . the union and the tension of the instituting society and instituted society, of history made and of history in the making.”29 This co-constitutional dynamic is important for our purposes. Opening up the relationship between the instituting and instituted dimensions of the social imaginary allows us to more precisely analyze both how social imaginary meanings inform the field of human rights, and how the operation of this field and activities of the people who populate it in turn reshape the social imaginary. To draw on Castoriadis again, the social imaginary determines “practically, affectively and mentally” how the world is grasped and establishes distinctions “concerning what does and does not possess value . . . and what should and should not be done.”30 Human rights might thus be understood as an institution that is enabled, informed, or shaped by a distinctive social imaginary, or perhaps better, by a set of social imaginary significations, and these inform how human rights “should and should not be done.” At the same time, the practice of human rights sustains, institutes, or in Castoriadis’ terms 28

29 30

As Heidegger puts it, “What we first ‘hear’ is never noises or complexes of sounds, but the cracking wagon, the motorcycle. We hear the column on the march, the north wind, the woodpecker tapping, the fire crackling.” Martin Heidegger, Being and Time, translated by J Macquarrie and E Robinson (New York: Harper & Row, 1962), 207. Castoriadis, The Imaginary Institution of Society, 108. Ibid., 133.

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animates these social imaginary significations and may alter them. Human rights are instituted on the basis of a set of existing schemas or meanings, and the practice of human rights, or the institutionalization and discursive elaboration of human rights as a form of practice, reinstitutes and may alter this social imaginary. A full articulation of the social imaginary of which human rights is a part far exceeds what I can achieve in this context. What I am specifically interested in here is making explicit the understandings about causality, agency, and the relationship between human subjects and other aspects of the world that are part of this social imaginary, how this social imaginary informs the human rights project, and in turn how the human rights project reinstitutes this social imaginary.

(ii) The Moral Priority of Agency in the Human Rights Idea To commence at the most abstract register, let us look at the ontological framework or fundamental philosophical outlook within which the human rights idea formed and from which it draws its logic. In a number of respects this is a contentious question, but any version of its etiology and characterization would include as one of its fundamental premises the centrality of the human individual as an autonomous agent and the priority of protecting their agency.31 That is, at the core of the human rights idea and project lies the image of the individual human as a moral subject; that is, a type of being who inherently has the capacity for agency and thus also for responsibility.32 That each person is free and not determined, that they have an absolute status as a subject and not an object, and that they must be recognized as an individual who has a conception of and investment in their own life, as distinct from being a moment in a broader collective or corporate identity, are all assertions built into the human rights idea. Indeed, if one looks to early modern political 31

32

My intention here is not to enter into recent debates about the history of human rights largely provoked by Samuel Moyn’s The Last Utopia. Whereas Moyn, and those who responded to his claims, have been concerned with the conditions for the emergence of human rights as a dominant contemporary form of political claim making, I am pursuing a less contentious intellectual history that traces human rights to the emergence of subjective rights and the development of liberal political philosophies. In order to contain this exploration of the social imaginary, which potentially covers a range of dimensions of human rights, I limit myself to the political dimensions of this conception of causality and agency. I note nevertheless that in the background is a Cartesian ontology in which human beings, or more accurately, human consciousness (which is itself distinguished from the human body), is established as the site from which action is motivated. By contrast, all other aspects of the world – the material world, structures, and institutions – occupy the status of objects without themselves having any causal capacity, except as caused causes.

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theorists like Hobbes, where one might locate the seeds of the human rights idea as a model for political orders, the decisive break that they made from ancient conceptions of rights lies precisely with the turn from objective rights, or rights that are the correlate of natural social relations (as in Aristotle), to subjective rights, which attach to the individual qua individual. In her analysis of the early modern jurists and the notion of power appropriate to the modern state, Blandine Kriegel makes this movement toward subjective rights very clear.33 She suggests that the early modern statists developed their theory of and principles for the legitimate operation of the modern state in response to some basic questions about the nature of the human being, including “Must subjects be treated as slaves?” and “Must human beings be treated as things?”34 Because the answer to the first question is no, the relationship between the governing and the governed must be one that respects the status of individuals as free and equal. Because the answer to the second question is again no, the nature of government has to be such as to respect all persons as subjects (albeit with a highly limited understanding of who counts as a person). With this background, Kriegel claims that the core of human or subjective rights is this notion of the “status libertatis,” and this in turn “has to do with liberty and personal security, the right of each person to his own body, the right to life.”35 In his analysis of the philosophy of human rights, James Griffin fills out the reason for this emphasis on normative agency.36 Griffin defines human rights as ethical claims based on an account of human beings as the types of being who are capable of exercising agency.37 Agency here is understood as the capacity to have a conception of the type of life that I want for myself and to conceive of my life as my own project. In fact, this capacity for normative agency is, Griffin claims, what we mean by personhood and forms the basis for why persons have rights. Insofar as they place limits on the way in which humans can be treated and how political authority can be exercised, human rights, then, protect this capacity for agency. At the same time, insofar as they ensure that all humans have access to certain fundamental resources, material, 33

34 35 36 37

Blandine Kriegel, The State and the Rule of Law (Princeton, NJ: Princeton University Press, 1995). Ibid., 25. Ibid., 35. James Griffin, On Human Rights (Oxford: Oxford University Press, 2008). I leave to the side, but note here the range of arguments concerning, the exclusionary dynamic that this emphasis on agency provoked, insofar as certain classes of humans – women, “natives,” subject peoples, people with disabilities and so on – were held not to be agents and thus denied human rights. I also leave to the side the implicit and absolute distinction between humans and nonhuman animals encoded here. My aim is rather to highlight centrality of agency to human rights as a distinctive type of project.

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social, and political, in terms we might liken to Nussbaum and Sen’s notion of capabilities,38 human rights enable humans to exercise this agency. Basic classes of human rights – autonomy, liberty, economic, and social rights – are then each linked with aspects of this capacity for agency. Perhaps nowhere do we see a more compelling link between agency, autonomy, and human rights than in the case of torture. Certainly, in respect of other rights, like the right to freedom of opinion, or the right to recognition as a person before the law, one can discern the centrality of protecting and facilitating the autonomy of the human person. In the case of torture, though, the question of agency strikes us with a particularly acute and affectively laden poignancy. Torture is, and has been understood as, that form of treatment that explicitly seeks to destroy human agency, and to do so on multiple levels. We call it inhuman precisely because it denies and seeks to annihilate what is human in the person tortured, where this humanness is understood as that person’s capacity for agency. At the most immediate level, torture destroys agency by depriving a person of the ability to make a choice about their own words. If the words that we speak are an expression of our unique selves and what we want to communicate about our experience of the world, then forcing a confession or the provision of information under torture breaks this natural relationship between our subjecthood and our words and, to return to Kriegel, makes of us a thing to be manipulated. Indeed, insofar as the capacity for language has long been identified as that which distinguishes human beings from nonhuman animals, the destruction of language, or more accurately of the link between language and agency, cuts to the heart of our humanity.39 At another level, the infliction of severe and prolonged pain may annihilate the experience of having any control over one’s own being, and reduce a person to a bundle of disorganized bodily experiences, which cannot be unified or integrated into a consciousness that experiences these states as its own. In this sense, torture becomes a way of destroying the possibility of the cogito or the res cogitans itself, and returning the person to the state of brute matter, an object of consciousness but not consciousness itself. It is this aspect of torture, including both the reduction to a disorganized set of sensations and 38

39

See, for example, Martha C Nussbaum, “Capabilities and Human Rights,” Fordham Law Review 66 (1997). Key texts in this regard include Rene´ Descartes, Discourse on Method and the Meditations, translated by F Sutcliffe (London: Penguin, 1968); Charles Taylor, Philosophical Papers: Human Agency and Language, vol. 1 (Cambridge: Cambridge University Press, 1985). Again, I leave to the side recent work criticizing both the empirical basis for this distinction and its implications for humans’ treatment of nonhuman animals.

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the destruction of language, that Elaine Scarry argued makes torture the distinctive and terrifying horror that it is.40 Indeed, consistent with Scarry’s thesis, studies on what it is about torture that most strongly correlates with long-term suffering and damage to an individual find that less important than the severity of the pain is the distress that the person experiences and the degree to which the person feels unable to control what is done to them.41 There are many ways in which humans impede other humans’ experience of themselves as agents, and a competition of abuses is obscene, but torture is undoubtedly one that strikes us with a particular acuity. We might then think of this ontological understanding of individuals as autonomous moral agents as a first register at which the social imaginary of the human rights project is evident. While one cannot sensibly speak about social imaginaries as “doing” something or “causing” something to happen, we can nevertheless speak about their having certain effects. In this case, one might say that this ontological and ethical privileging of humans as agents has effects on what types of problems become particular issues of concern within the human rights framework,42 and shapes the way in which we discern what counts as a wrong and how we describe or narrate it. My argument here, though, is not simply that the agency of victims, or of rights holders, comes to be a privileged site of focus or concern in the human rights framework, or that we narrate wrongs in terms of harms to agents. It is rather that our understanding of the world more generally is one in which human agents stand out in a particular way and as distinct from the rest of the inert world, or the world deprived of this special quality of agency. Understood thus, the flip side of the concern to protect persons from violations that would undermine their agency is the view that the responsibility for such violations must lie with other (human) agents. While one could craft a story about the causes of violations that will build in the contribution of structures or systems or situations, within this social imaginary, they will be conceived as auxiliary to human actors. (iii) The Professional Imagination of Human Rights If the basic ontological and ethical framework underpinning human rights is one that accords a particular privilege to human agents, one can discern the operation of a parallel imaginary structure at the more immediate or concrete 40 41

42

Scarry, The Body in Pain. Bas¸og˘lu, Livanou, and Crnobaric´, “Torture vs Other Cruel, Inhuman, and Degrading Treatment.” One could, in this regard, explain the historical priority given to civil and political rights in liberal societies as another effect of this social imaginary.

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register of professional outlook or professional practice. Historically, the people who have led and shaped human rights organizations and human rights discourses have been professionals with legal education and training who, as such, bring with them a distinctive (albeit internally diverse and contested) set of understandings about the relationship between agency, responsibility, and wrongdoing. With respect to criminal law in particular, intention, or mens rea, is a condition for imputing responsibility and thus legal liability, meaning that the capacity to intend and with this to choose and to will are conditions for the attribution of guilt.43 In this regard, we should nevertheless recognize that the introduction of the concept of the legal person has extended the reach of law, including criminal law, beyond adjudication of the rights and responsibilities of individual human beings.44 Thus, as Costas Douzinas puts it, “legal subjectivity has not been exclusively bestowed on humans.”45 Indeed, as John Dewey argued in a landmark analysis of the concept of the legal person, “there is no general agreement regarding the nature in se of the jural subject,”46 an observation that led Dewey to argue for a stronger separation between the legal concept and our philosophical or everyday intuitions about the nature of persons. Nevertheless, as Dewey himself acknowledged, in practice, legal notions of the person have drawn on popular or philosophical notions of the (natural) person, following the guiding postulate that “before anything can be a jural person it must intrinsically possess certain properties, the existence of which is necessary to constitute anything a person.”47 Accordingly, attributes deriving from our modern notions of the individual human subject, such as the capacity to will and choose, remain embedded in virtually all conceptions of legal personhood, even those that insist that it is distinct from nonlegal 43

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The centrality of choice leads some theorists to insist on the inseparability of the concept of the legal person from the actual human individual. As Fitzgerald argues: “Since rights and duties involve choice, therefore, they will naturally under any system of law be held to inhere primarily in those beings which enjoy the ability to choose, viz, human beings.” Patrick John Fitzgerald, Salmond on Jurisprudence, 12th edn. (London: Sweet and Maxwell, 1966), 298. The centrality of the will, deriving most clearly from Kantian conceptions of the moral person, is most strongly articulated by “will theorists.” See, for example, Matthew H Kramer, “Rights without Trimmings,” in A Debate over Rights: Philosophical Enquiries, edited by Hillel Steiner, Matthew H Kramer, and NE Simmonds (Oxford: Clarendon Press, 1998). On the concept of the legal person see Ngaire Naffine, “Who Are Law’s Persons? From Cheshire Cats to Responsible Subjects,” The Modern Law Review 66, no. 3 (2003). Costas Douzinas, The End of Human Rights: Critical Thought at the Turn of the Century (Oxford and Portland: Hart, 2000), 185. John Dewey, “The Historic Background of Corporate Legal Personality,” Yale Law Journal 35, no. 6 (1926): 660. Ibid., 658.

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conceptions of the person.48 The conflation of the legal person with the natural person has not prevented corporate bodies from acquiring legal personhood for the purposes of contracting, for example, nor has it shielded them from certain types of legal liability, particularly with respect to torts. As a number of analysts have argued, however, “the corporation is a person when it comes to the advantages of law, but a non-person when it comes to crimes seemingly committed by it.”49 By way of example, Neocleous argues that even though theoretically it would be possible to prosecute for corporate manslaughter, a theoretical possibility that implies that criminal responsibility need not entail the presence of a willing and choosing agent modeled on the individual person, in practice, unless “a controlling [human] mind” could be identified, such cases would be highly unlikely to succeed.50 In her analysis of the different understandings and uses of the notion of the legal person, Naffine recognizes and systematizes a range of understandings among legal theorists and within legal practice of the legal person, including those that “positively reject the claim that legal personality necessarily builds upon a metaphysical conception of the person.”51 According to this conception, the concept of a legal person is a legally autonomous concept that in no way rests on metaphysical or biological conceptions of the person. It is rather, as Richard Tur asserts, simply a formal category that might be filled by any being that has the “legal capacity to bear rights and duties,” and as such “anything or anyone can be a legal person.”52 Despite this insistence on the category’s capacity to be filled with an open-ended range of types of beings, Naffine argues that in practice, “the empty slot of the person has been given certain dimensions, fitting to some and not others,” pointing to the exclusion of nonhuman animals as a case in point.53 In other words, even by virtue of the apparently neutral definitional requirement that a legal person be one that has the capacity to bear rights and duties, certain types of beings, namely humans or the corporate bodies that they constitute, are implied as the true and sole legitimate subject. 48

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In this regard, Dewey quotes Gierke: a “universitas [or corporate body] . . . is a living organism, and a real person with body and members and will of its own. Itself can will, itself can act . . . it is a group person and its will is a group-will.” ibid. Mark Neocleous, “Staging Power: Marx, Hobbes and the Personification of Capital,” Law and Critique 14, no. 2 (2003): 164. Ibid., 163. Naffine, “Who Are Law’s Persons?,” 350. Richard Tur, “The ‘Person’ in Law,” in Persons and Personality: A Contemporary Inquiry, edited by A Peacocke and G Gillett (Oxford: Basil Blackwell, 1987). Naffine, “Who Are Law’s Persons?,” 356.

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Even given the range of possible interpretations of the notion of the legal person, in some branches of law, the pendulum seems to swing particularly strongly toward the notion of the autonomous human individual. Thus, for example, in the criminal law in particular, as Waller and Williams assert, “almost the whole of our system . . . is based upon the view that a human being is a rational creature, free to choose how to act, and deserving of punishment if she or he chooses to act immorally or wickedly.”54 Moreover, within this spectrum of legal opinion concerning the types of beings who could count as legal persons, Naffine observes that “for most human rights lawyers, this is almost axiomatic, this mapping of legal rights onto an antecedent human subject.”55 As I argued in Section 3(ii), it has generally been with respect to the type of subject who can qualify as the bearer of rights and to whom the law thus owes protection that the human rights approach has emphasized the primacy of the human agent; but the ontological priority of the individual human does not stop on the side of the victim, and similarly shapes how we think about the sources of violations. In the simplest of terms, if it is individual humans who are the subjects of rights, then by way of ontological symmetry, it is also individual human beings, albeit sometimes working in concert, and often using the nonhuman world to augment their efforts, who are responsible for the violation of rights.56 Within this logic, the contributory role of structures or systems can only ever be conceived as operationalizing or amplifying the intentions of the responsible human agents. Certainly, there have been attempts within legal theory to produce a more contextualized understanding of law and to re-embed law’s protagonists in broader structures. Critical legal scholars have, for example, attempted to make explicit the way in which legal logics and the structure of law are themselves embedded in broader fields of power, and feminist legal scholars have sought to expose the extent to which this narrative of agency occludes the structural inequality of differently positioned protagonists in the legal story.57 Nevertheless, their interventions have not, I would argue, fundamentally altered this legal imagination.

54

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Peter Waller and Charles Williams, Criminal Law: Text and Cases, 9th edn. (Sydney: Chatswood Butterworth, 2001), 258. Naffine, “Who Are Law’s Persons?,” 358. On collective responsibility see, for example, Feinberg, “Collective Responsibility.” On critical legal theory see, for example, Mark Tushnet, “Critical Legal Studies: An Introduction to Its Origins and Underpinnings,” Journal of Legal Education 36, no. 4 (1986). On feminist critiques of human rights law see Charlesworth, Chinkin, and Wright, “Feminist Approaches to International Law.” On critical approaches to international law see Schwobel, Critical Approaches to International Criminal Law.

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Again, it is critical that I be clear that in drawing attention to the distinctive way in which law sets its gaze on human subjects, my point is not to question the normative logic of attributing responsibility in this way. Nor is it to question the association between intention, choice, responsibility, and punishment that is encoded in the operation of law. There are good and important reasons for conceiving (with Kant) of human beings as distinctive types of moral agents who thereby attract distinctive rights or protections on the one hand and responsibilities or liabilities on the other.58 Indeed, as Strawson has argued, metaphysical questions about the existence of the autonomous self can be suspended, because the work that the assumption of the self-responsible individual does is social. Morally reactive attitudes (praise and blame) and the institutions that are founded upon them, including here the criminal law, thus function to constitute subjects in particular ways and to regulate their behavior.59 Nevertheless, making explicit the distinctive logic that underpins the operation of law’s understanding of wrongdoing and attribution of responsibility helps to explain why people working within legal paradigms are thrown to adopt particular sorts of approaches, not only to punishment but also to prevention. Again, drawing a distinction between what is justifiable in the realm of punishment and what might be effective in the realm of prevention is critical. Once we cast human rights in the mold of modern Western law, the imaginary structure that they will bring with them will be one in which persons need to be identified as responsible and so answerable or accountable for wrongdoing. As such, the imaginary of human rights then becomes one in which the narrative of wrongdoing is structured around perpetrators and victims, naturalized protagonists who can be logically abstracted from the context within which they operate. The anti-structural tendency of this legal imagination is then reinforced or heightened by the horror and revulsion that torture provokes. For many (though evidently by no means all) people, the idea or image, and even more so the reality of a person who has been tortured will arouse emotions

58

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Kant’s argument for punishing criminals strictly rejects utilitarian (deterrent) justifications or rehabilitation on the ground that both fail to respect the dignity and freedom of the criminal who, having acted freely, “draws the punishment on himself.” Immanuel Kant, The Philosophy of Law, translated by W Hastie (Union, NJ: The Lawbook Exchange, 2002), 244. Strawson, Freedom and Belief; Victoria McGeer, “Co-Reactive Attitudes and the Making of Moral Community,” in Emotions, Imagination and Moral Reasoning, edited by Robyn Langdon and Catriona MacKenzie (New York: Psychology Press, 2012).

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that make strong cognitive demands.60 The anger, indignation, and revulsion that torture provokes involve judgments about the world and make demands on us, demands that are not easily quelled by a story about structures of injustice. On the contrary, confronted with someone whose body and personality have been abused and violated, we look for a responsible agent toward whom we can direct those emotions and through whose punishment we can find some type of resolution (although always an imperfect one) for our indignation, our sense that this should not have happened. One could of course go one step further to argue that the fact that our experience of these emotions carries these types of judgments, directed toward individual perpetrators, is itself indicative of our operating within a particular social imaginary. As natural as this form of judgment might seem, its contingency is made evident when we recognize that at other times and in other cultural contexts, a scene of torture might have evoked fear of the gods or a belief in some type of divine retribution on punishment.61 Far from undermining our argument, however, this reinforces the multidimensionality and, in this instance, the affective dimension of the social imaginary at work. (iv) Compelling Narratives This then takes me to the third register at which we can see the instituting and instituted work of the social imaginary in the field of human rights: the metaphoric register. Here we are dealing with the metaphoric structure of the narratives used to describe human rights violations, particularly in the context of human rights campaigns. I can illustrate this perhaps most clearly with reference to an example. “Kony 2012” was primarily an online campaign, based around a short film about the atrocities being committed by the Lord’s Resistance Army (LRA) in northern Uganda.62 Its stated aim was to raise awareness about the crimes of the LRA and provoke viewers to press for action, principally in the form of the arrest and prosecution of the LRA’s leader, Joseph Kony. One week after the film’s release, the website had been viewed one hundred million times and 3.7 million people had pledged their support 60

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As Wollheim puts it, “precisely the role of emotion is to provide the creature . . . with an orientation, or an attitude to the world.” Richard Wollheim, On the Emotions (New Haven, CT: Yale University Press, 1999), 15. On the cognitive theory of emotions and emotions as judgments see, for example, Robert C Solomon, ed. Thinking About Feeling: Contemporary Philosophers on Emotions, Series in Affective Science (New York: Oxford University Press). To quote Solomon, “An emotion is . . . the projection of the values and ideals, structures and mythologies, according to which we live and through which we structure our lives.” The Passions: Emotions and the Meaning of Life (Indianapolis: Hackett Publishing, 1976), 126. Corinna Jentzsch, “Joseph Kony – the Adventure Show,” The Guardian, November 6, 2013.

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for Kony’s arrest. No doubt the reasons for this campaign attracting such attention are manifold, but one was that it offered its viewers an appealing and satisfying, if facile narrative form: a story about evil, innocence, and saviors. Each of those qualities was embodied in recognizable characters: Joseph Kony was the evil perpetrator, the children of Uganda were the innocent and suffering victims, and the young people of the world could be the indignant and courageous saviors. Indeed, as I was writing this section, an email newsletter landed in my inbox from Amnesty International, announcing that “Indonesia is ready to execute again,” with a link to an interview with a young man who, seeing this suffering, had changed his stance on the death penalty. The newsletter also recounted the story of a young mother’s fight to retain her freedom and remain with her young son, even as the Attorney General of El Salvador sought her return to prison on suspicion of having had an abortion.63 The film and the email impeccably illustrated what Mutua has called “the damning metaphor” of the human rights movement, in which the narrative form is driven by the presence and interaction of the “savage,” the “victim,” and the “savior.”64 For Mutua, what renders this narrative structure so problematic and dangerous is its continuity with, and replication of, European imperialism and its implicit racism, and the way in which its deployment, allegedly for emancipatory purposes, subsequently justifies structures of neoimperial political domination. My point is slightly different and more fundamental. Irrespective of the particular content of the identity of the characters, the mythic or metaphorical structure of the narrative is one that constructs a particular type of causal story in which the source of the wrongdoing is an agent, ideally with a morally contaminated consciousness. And because metaphors are not merely rhetorical, but also action orienting, the adoption of this metaphoric frame sets up the problem and the range of possible solutions in a distinctive manner.65 That the types of policy approaches we develop do not follow from an unmediated or positivist assessment of the facts about a problem and what we know about the efficacy of possible solutions has been well captured by the philosopher Donald Scho¨n, 63 64

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Amnesty International, May newsletter. Makau W Mutua, “Savages, Victims, and Saviors: The Metaphor of Human Rights,” Harvard International Law Journal 42, no. 1 (2001). On the constitutive or action-oriented role of metaphor, see Paul Ricœr, The Rule of Metaphor: Multi-Disciplinary Studies of the Creation of Meaning in Language, translated by Robert Czerny (Toronto: University of Toronto Press, 1981); George Lakoff and Mark Johnson, Metaphors We Live By (Chicago: University of Chicago Press, 2008).

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who argues that what most constrains our policy strategies is not in fact our inability to find optimal solutions, but the metaphors we bring to our conception of problems and the “ways in which we frame the purposes to be achieved.”66 If one thinks in terms of the political theology at work here, one can discern the structure of Manicheaism, where the world comprises two fundamentally different types of morally inflected substances, one good and one evil, substances that tinge the consciousness of human agents and that must thus form the object of our preventative approaches. The presence of this mythic or metaphoric narrative structure is particularly pronounced where human rights activism is performed through naming and shaming, and for reasons we can easily comprehend.67 Precisely because the immediate objective of naming and shaming campaigns is to enroll publics in a cause, mobilize them, energize them, and spur them to action, this strategy will draw on the narrative structures that will be most likely to do that; and the metaphor of the villain/savage, the victim, and the savior has a distinctively powerful moral valence and seductive appeal. Being able to identify specific individuals who can be the target of action renders action more accessible. By contrast, it is very difficult, in the contemporary context at least, to tell a story about structural injustice in a way that has these enrolling, activating, energizing, and motivating effects.68 In a highly cited article about whether human rights organizations should be working on social and economic rights, Kenneth Roth, Executive Director of Human Rights Watch, makes just this point.69 Affirming that the methodology of choice of human rights organizations is naming and shaming, he argues that “only certain types [of public outrage] are sufficiently targeted to shame officials into action,” and that to provoke just the right type of outrage, 66

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Donald Scho¨n, “Generative Metaphor: A Perspective on Problem-Setting in Social Policy,” in Metaphor and Thought, edited by Andrew Ortony (Cambridge: Cambridge University Press, 1979), 255. Considering the best ways to advocate in relation to social and economic rights, Alicia Yamin makes a similar point, arguing that “[t]raditionally, human rights documentation has relied greatly on the individual narrative . . . However, although paradigmatic cases can illustrate broader patterns of abuse, effective advocacy requires being able to interpret the meaning and causes of those broader patterns.” Alicia Ely Yamin, “The Future in the Mirror: Incorporating Strategies for the Defense and Promotion of Economic, Social and Cultural Rights into the Mainstream Human Rights Agenda,” Human Rights Quarterly 27, no. 4 (2005): 1204–205. On the importance of narratives illuminating structural injustice, see Jade Larissa Schiff, Burdens of Political Responsibility: Narrative and the Cultivation of Responsiveness (New York: Cambridge University Press, 2014). Kenneth Roth, “Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization,” Human Rights Quarterly 26, no. 1 (2004).

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publics need someone to blame.70 If the public can identify no one particular to blame, or if responsibility is diffuse, the stigma, which provokes outrage, is diminished “and with it the power of international human rights organizations to effect change.”71 Strategic human rights work, in this mode, would thus require narratives where clear, and preferably individualized, responsibility can be attached to clear and visible violations. A point of qualification is once again in order here. My argument is certainly not that torture does not involve perpetrators and victims. I am also not questioning the critical role of narratives that illuminate the responsibility of perpetrators at all levels. Nor am I suggesting that the emotional responses that torture evokes are inappropriate or that activists are wrong to seek to expose publics to torture in ways that will mobilize their strong affective responses and powerful judgments. Rather, I am seeking again to shed light on the distinctive way in which the problem of torture comes to be understood through the promulgation of a particular imaginary frame that narrates torture in a distinctive way. Here, the story of torture is one where it is cast as the outcome of the choices or autonomous actions of individual moral agents, whom it is thus logical to blame for this horrific wrongdoing and whom we can then hold to account.72 Insofar as torture is encoded within this social imaginary and insofar as human rights practices instantiate this social imaginary, the way in which we conceptualize prevention will be similarly tied to this understanding of agency and causality. That it is certain types of stories that capture the imagination of publics, namely ones that involve individualized characters with clear morally inflicted attributes, but that these same narrative structures occlude an important part of the causal field, points to a genuine tension. The implication of my analysis is that if they are to more effectively address the conditioning systems and situations underpinning violations, human rights organizations need to eschew simple agent-centric morality tales. At the same time, the political imperatives of mobilizing publics incentivize them to adopt precisely such stories. This tension is not one that can simply be dissolved. Nor is it my place to suggest how human rights organizations ought to negotiate it, but rather to sharpen and illuminate it so that they are in the best position to make informed choices. Nevertheless, the implication of my analysis is that to the extent that human rights organizations wish to develop strategies that attend to the systematic underpinnings of torture, they will need to resist, or withdraw their investment in, the narratives that they 70 71 72

Ibid., 67. Ibid. That the responsible agents are acting on behalf of the state or enacting state policy does not in itself undermine the argument, but pushes back the agency based responsibility to higher authorities, also conceived as deciding agents.

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have traditionally deployed in their public mobilizations. Doing so would admittedly have knock-on effects for the way in which they mobilize publics, and beyond this, may have larger implications for the identity of human rights organizations, constituted as it is, in part, by the types of stories they tell. Alternatively, it may be necessary to mobilize different types of stories depending on their system purpose, or to cordon off the work that gets done by stories for mobilizing publics from the work done by stories for developing prevention strategies.73 Irrespective of how they negotiate this tension, if human rights organizations and advocates see situation-focused prevention strategies as similarly important, they will need a social imaginary of human rights and torture that can support a narrative of causality that encodes systemic factors, alongside agent responsibility. It is to this possibility that I now turn.

4 TOWARD A NEW SOCIAL IMAGINARY FOR THE PREVENTION OF TORTURE

(i) Looking for New Imaginaries for Human Rights Could we recast the narrative of the causality of torture in a way that does not demand this privileging of individual agency, or at least does not involve an erasure of the situational or systemic factors that underpin torture? Several distinctive questions are folded into this one, just as there are several registers on which the social imaginary is instituted in and instituted by the field of human rights. Tracking the registers that I have analyzed, in the first instance the task of recasting the narrative of causality would require an ontology in which entities other than individual humans are capable of some type of agency, or perhaps more accurately of a role in the causal narrative. Moving to the other registers, 73

The tension I am pointing to here is different to but in some respects resembles the one Rachel Wahl raises in her analysis of human rights work with police in India in Just Violence. She points out that human rights organizations have traditionally tried to play two incompatible roles: naming and shaming on the one hand, and educating police to believe in and value human rights on the other. Her argument is that these roles involve two very different relational stances, and thus, she suggests that they need to be taken up by different actors. Although in theory a similar suggestion could be made here, my preference is to remain with the irreducible tension, and to argue that it cannot easily be eluded by distributing roles. Indeed, part of what is at issue here is that the prevalence of agent-centric and individual tales of responsibility follows from the dominant and implicit methodological and ontological individualisms that are at work in late modern societies and that shape how we think about questions of agency and causality. What would thus be required to overcome the tension, and ideally to try to “bring publics along” with complex causal narratives, would be a far more comprehensive transformation.

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however, it is evident that the availability of such an ontological schema is not sufficient to its becoming a living narrative for the human rights field, or, to put it otherwise, for its uptake by human rights organizations seeking to prevent torture. Uptake may fail because there is a mismatch between the ontological frame and the understandings or professional background of those who work in the field. It may also fail because it does not fit with the activist tools that are available or that people in the field know how to develop, or with which they are familiar and adept. Nevertheless, articulating an ontological framework consistent with a more systemic approach is a sound entry point for several reasons. As I have argued, it represents a core dimension of the social imaginary within which human rights strategies are developed. Moreover, as we have seen, there are already prevention strategies that do focus on situational factors, and the availability of a stronger theoretical frame to support them would strengthen their hand and assist in their further elaboration and development. In articulating this alternative framework, however, we need to remain mindful of the fact that this theoretical task has practical ends, and as such we need to be attentive to how it may occur to people working or engaged in the field, and the resistances that it might provoke. As I argued earlier in this chapter, any alternative in which the causal role of human agents is eliminated altogether, or where human agency is, as in some types of crude structuralism, reduced to an epiphenomenon (thereby simply turning the subject–object dichotomy on its head), will not do the work we need it to do. So, we are looking for an ontological schema that expands the conceptions of causality, agency, and action in such a way that both recognizes that individual humans are responsible for their actions, and encodes a place for the contributory role of other types of entities or factors. In the fields of anthropology and sociology, there is no shortage of theories seeking to reconceive the causal narrative in ways that displace the centrality of individuals and illuminate the structural or systemic conditions of apparently autonomous human choices. Indeed, the debate over the relative contributions of structure and agency has been one of the shaping forces of sociological and anthropological theory since the late 1960s.74 For our purposes, and given the brief I have established, I am going to suggest two quite different ontological frameworks. One of them falls under what are known as “third way” or “practice” theories, and the other broadly under new materialist approaches. As I will discuss, there is in fact some tension between these two approaches, and my intention is not to provide a higher-order theory that synthesizes them, but rather 74

See, for example, Robert Goodin’s introduction to Robert E Goodin, The Theory of Institutional Design (Cambridge: Cambridge University Press, 1998).

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to draw from each in a way that importantly illuminates and helps to make sense of causal factors beyond autonomous individuals.

(ii) Bourdieu, Field, and Habitus The moniker “third way” comes from the logic of transcending a framework that forces a choice between agency- and structural-level, or objective and subjective causal explanations by invoking a third term that recasts the ontological status of each, and allows us to remap them in terms of their imbrication. Among third-way theories, Pierre Bourdieu’s theory of practice is particularly useful for our purposes, because his basic premise is that agency and structure, or as he calls them, the subjective and objective moments, “stand in dialectical relation” and ought to be seen as co-constitutional.75 In fact, Bourdieu eschews the notion of agency as traditionally understood altogether, replacing it with the concept of the habitus, which is “a system of durable and transposable dispositions that mediates an individual’s actions.”76 Integrating past experiences, habitus functions “as a matrix of perceptions, appreciations, and actions, and makes it possible to accomplish infinitely differentiated tasks, thanks to the analogical transfer of schemata acquired in prior practice.”77 The subjective dimension normally attached to the agency pole is thus retained insofar as a person does experience themselves as bringing their interests and values to the new situation that they encounter, evaluating that situation in light of these experiences and their values, and making choices about how they wish to act. But, as Bourdieu (echoing Marx) insists, “she has not chosen the principle of her choice.”78 On first read, this rider might seem to effectively undermine the integrity of choice and destroy what qualifies subjective experience as agency. It might seem to cast “choice” and subjective experience as epiphenomenal to a determining force that, because it lies behind our backs, eludes us and has us delude ourselves about the true source of our actions. But this interpretation misses the radical remapping Bourdieu is suggesting. 75

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Pierre Bourdieu, “Vive La Crise! For Heterodoxy in Social Science,” Theory and Society 17, no. 5 (1988): 782. In a similar move, and influenced by Bourdieu, in her analysis of structural injustice, Iris Marion Young insisted that this type of injustice exists even where direct perpetrators can be identified, and as such, injustices “should be analyzed on these two levels.” Iris Marion Young, “Responsibility and Global Labor Justice,” Journal of Political Philosophy 12, no. 2 (2004): 377. Pierre Bourdieu, The Logic of Practice (Stanford, CA: Stanford University Press, 1990), 53. Pierre Bourdieu, Outline of a Theory of Practice (Cambridge: Cambridge University Press, 1977), 261. Pierre Bourdieu, Pascalian Meditations (Stanford, CA: Stanford University Press, 2000), 177.

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The subjective dimension or the experience of agency persists, but it operates within a matrix of “the rules of the game” – rules which have “incorporated the immanent structures of a world or of a particular sector of that world – a field – and which structures the perception of that world as well as action in that world.”79 Practice, or what is done and how people behave, is “the product of a dialectical relationship between a situation and a habitus.”80 Indeed, Bourdieu insists that habitus (which is already situated) cannot be considered as generating action independent of the world in which it operates. At the same time, and again resisting the reduction of agency to an epiphenomenon of structural forces, “in reaction against instantaneous mechanicalism, one is led to stress the ‘assimilative’ capacities of habitus, but habitus is also adaptation: it constantly performs an adjustment to the world that only exceptionally takes the form of radical conversion.”81 Actors, then, always operate within a particular field, and through the medium of accumulated history that gives habitus its particular shape, but not mechanically, and in ways that involve adjustment, variation, and, as Bourdieu says, occasionally a radical departure. Importantly, the dialectical relationship referred to does not keep intact fully constituted substances (people, systems, objects, structures) that would then come into a dynamic relationship. Rather, and consistent with the challenge that field theories pose to an Aristotelian substantialism, this conceptual framework does away with the ontological assumption of constants that undergo situational changes.82 Consistent with this ontological shift, the field is not to be understood as a site comprising a series of structured positions (within which practice takes place), but as “systems of relations independent of the populations defined by those relations.”83 A further aspect of Bourdieu’s theory that is useful in explaining the embedded nature of action concerns the relationship between the system of relations within which actual people act, and the distribution of different types of capital. As set out at the start of this section, and as Janet Chan explains, “habitus consists of a set of historical relations ‘deposited’ within individual 79

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Pierre Bourdieu, Practical Reason: On the Theory of Action (Stanford, CA: Stanford University Press, 1998), 81. Bourdieu, Outline of a Theory of Practice, 261. Pierre Bourdieu, Sociology in Question, translated by Richard Nice (London: Sage, 1993), 136. For a discussion of the epistemological foundations of the idea of the field, see Mathieu Hilgers and Eric Mangez, “Introduction to Bourdieu’s Theory of Social Fields,” in Bourdieu’s Theory of Social Fields: Concepts and Applications, edited by Mathieu Hilgers and Eric Mangez (Abingdon and New York: Routledge, 2015). Pierre Bourdieu and Loı¨c JD Wacquant, An Invitation to Reflexive Sociology (Chicago: University of Chicago Press, 1992), 192.

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bodies in the form of mental and corporeal schemata of perception, appreciation and action,” and field “consists of a set of objective, historical relations between positions.”84 The structure of those relations that constitutes the field is in turn anchored in the distribution of different forms of power, or what Bourdieu conceptualizes as capital. In using this term, however, he is thinking beyond the narrow understanding of capital as economic resources, to include two other principal forms, cultural capital (which would include information, knowledge, competence, prestige, and rank) and social capital (which comprises one’s network of connections). The structure of relations between positions is thus given by how much of these different types of capital different positions have (remembering that positions should not be confused with actual empirical people, although actual people occupy positions). Depending on the field in question, however, what counts as cultural or social capital will differ, or to put that otherwise, the particular types of knowledge or capacities or connections that will be recognized and thus allow a person to accumulate cultural or social capital, so as to occupy a position of relative domination, will differ. This means that it will be important to recognize what counts in the field one is interested in, or what is attributed value. Thus, for example, in the field of policing, toughness or a propensity to use violence may be particularly important for accumulating cultural capital, and if this is the case, the relative location of positions will be defined according to their relative possession of these capacities or propensities toward using violence: the more you have, the more dominant the position you are able to occupy. Again, this means that the types, qualities, values, and ways of being that individuals will develop and embrace as they seek to locate themselves in advantageous positions will, to a significant extent, be shaped by the symbolic values of that field, or by what is believed to count. As Bourdieu points out, however, the competition is not only to accumulate as much as possible of what is already deemed to be valuable within the field; there are also struggles over what gets to count. Thus, one might say that the everyday struggles are over the acquisition of the field-specific forms of capital – everyone wants to have more of the specific skills or knowledge or goods that are valued; but at the same time, there are more radical struggles going on over what gets to count. Moreover, and as one might expect, how people are positioned with respect to this question (about what ought to count), and whether people advocate change in what counts, or try to keep the existing 84

Janet Chan, “Backstage Punishment: Police Violence, Occupational Culture, and Criminal Justice,” in Violence and Police Culture, edited by Tony Coady et al. (Melbourne: Melbourne University Press, 2000), 91.

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symbolic order in place, depends on their position. Bourdieu expresses this idea, rather confusingly, in terms of the relationship between position-taking and position. Expressed in more straightforward terms, this rather commonsense idea is that dominant positions are likely to favor the persistence of existing systems of symbolic value, because within that existing system, they are the winners. By contrast, dominated positions, which by definition are losers in the competition over what is already recognized, are likely to advocate changes to the system of symbolic value.85 For example, take the case of women entering traditionally male fields such as the police or military. In the initial stages, they are likely to compete on the basis of already recognized forms of capital. If they are to establish their credibility and obtain recognition, rank, and reward, they need to accumulate the “goods” that are recognized; for example, by demonstrating physical strength or a “manly” form of toughness. If they are unable to do so, however, and perhaps even if they are, but are aware of the way in which their distinctive skills and capacities are devalued, they may then seek to alter the system of symbolic value – to change what counts – for example, by replacing the capacity to use force with the capacity to peaceably resolve disputes. Similarly, one might think of interventions seeking to introduce a culture of human rights to security organizations as efforts to alter what forms of belief and behaviors are valued, and in turn to link the accumulation of capital through behaving in ways that comply with this new set of symbolic values with specific benefits like being promoted, or acquiring the respect of one’s peers. The fact that distinctive fields operate according to their own distinctive systems of symbolic value, and that relations between positions are rooted in the distribution of capital determined by these field-specific values, also means that they will show a significant degree of inertia or resistance to change. This will be the case both with respect to altering the relationship between positions and, more importantly for our analysis, with respect to changing what counts or is recognized within that field. The accumulation of capital, as well as the instantiated recognition of certain types of behavior or capacities as capital, thus come in alongside 85

One should not strictly correlate conservation of existing forms of symbolic capital with dominant positions, precisely because those positions may be able to foresee changes, say technological changes, where they will be advantaged by the introduction of new symbolic orders. An example of this would be multinational resource companies beginning to advocate for state support for the development of renewable energy sources, or advocating their adoption in the media, at the point that they can see that it would be economically advantageous to move their investments away from traditional resources and into renewables.

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the habitus to constitute the social world as “accumulated history” and to restrain innovation.86 Summarizing Bourdieu’s understanding of the individual, and distinguishing it from dominant philosophical traditions, Wacquant writes, “She is a sentient being of flesh and blood . . . who is enmeshed in the world by an opaque relationship of ‘ontological complicity’ – or enmity, as the case may be – and who is bound to others from within through the ‘implicit collusion’ fostered by shared categories of perception, appreciation and action.”87 Notice here his use of the terms “complicity” and “collusion,” both conveying the fact that individuals are active in the reproduction of the existing system of symbolic values. Nevertheless, and despite the radical ontological and epistemological transformation he set out to effect, Bourdieu has been widely criticized for reinstating a variety of structural determinism. If this accusation is correct, he would not be solving our dilemma, but rather just effecting a type of dialectical reversal and erasing the pole of agency (as if actors would read off scripts) in precisely the manner that we established would render unviable this theoretical alternative.88 I do not accept that this criticism is legitimate, but given some of the descriptions he has provided of habitus as, for example, a “kind of transforming machine that leads us to reproduce the social conditions of our own production,” one can well understand the basis of such concerns.89 But then if one continues past the end of this quote, the passage continues with a qualification. The reproductive process occurs, he argues, “in a relatively unpredictable way, in such a way that one cannot move simply and mechanically from knowledge of the conditions of production to knowledge of the products.”90 To understand how this unpredictability could occur, without smuggling back in a pure transcendent subject, we must again appreciate that relationships have a type of ontological priority over positions or substances. Thus, the “rules of the game” that constitute habitus should be understood in the sense developed by Wittgenstein, where what we call rules do not have some 86

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Pierre Bourdieu, “The Forms of Capital,” in Handbook of Theory and Research for the Sociology of Education, edited by J Richardson (New York: Greenwood, 1986), 241. Loı¨c JD Wacquant, “A Concise Genealogy and Anatomy of Habitus,” The Sociological Review 64, no. 1 (2016): 68. For a discussion of some of the critical literature, see, for example, Anthony King, “Thinking with Bourdieu against Bourdieu: A ‘Practical’ Critique of the Habitus,” Sociological Theory 18, no. 3 (2000). Bourdieu, Sociology in Question, 87. Bourdieu, Sociology in Question, 87.

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objective ontological status and intrinsic meaning that would then be imposed or internalized, but are rather constituted through use, intersubjective agreement, and context. Moreover, individuals formed within the habitus do not act in a certain way because they are following a “set of independent and coherent axioms.” Rather, their subjectivity, or the type of subjects that they will be at any particular time and in any particular field, includes having a feel for the game, for the “practical schemes” that belong to the habitus and to the field of play.91 An example relevant to our subject may be useful here.92 Police personnel in a variety of countries are often found to discriminate against members of minority or marginalized groups, subjecting them to greater violence and according them less respect than they would toward other citizens. On the one hand, explaining this discriminatory behavior as the outcome of freely chosen preferences of each police person obscures the patterned and institutional character of the practice. On the other, it would be incorrect to say that police are explicitly taught or formally required to behave more violently to certain categories of people. Rather, part of what it is to become and then to be a police person in a particular context is to acquire a practical grasp of the implicit rules concerning how different people ought to be treated, and indeed to creatively improvise on those rules. The patterned discrimination against particular groups is likely to be continuous with broader patterns of inequality and marginalization in the society within which the police are operating. At the same time, however, the patterning may in certain ways be distinctive to the field, such that when operating in a different field, say within their family or religious group, a somewhat different set of behaviors and dispositions may emerge. In fact, because any actual existing person operates across multiple fields and is located across multiple relational spaces, the feel that they have for the game, and the degree to which they may seek to subvert the symbolic values that would have it played a particular way, can differ. So far, with all of this talk of systems of symbolic order, it may seem that the distribution of positions in a field is ultimately arbitrary, or perhaps more accurately that the values that shape the distribution are arbitrary. But this is not so. The actual configuration within which people are operating, including the institutional and material structures and systems, will also influence what counts and what is valued. Material conditions like the size of prison cells, the 91 92

Bourdieu, The Logic of Practice, 12. I am indebted to Janet Chan’s adaptation of Bourdieu for this interpretation. See Janet Chan, “Changing Police Culture,” British Journal of Criminology 36, no. 1 (1996).

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equipment available to law enforcement officials, the length of shifts, and institutional practices like the participation of medical officers and magistrates after suspects are arrested will have shaping effects on both field and habitus. As Bourdieu puts it (although his description of structure is here limited to class relations), “If one takes seriously both the Durkheimian hypothesis of the social origin of schemes of thought, perception, appreciation and action and the fact of class divisions, one is necessarily driven to the hypothesis that a correspondence exists between social structures (strictly speaking, power structures) and mental structures.”93 Another way of putting this would be to say that the symbolic structures and social structures are coeval and corresponding. So, for example, one might say that it is an effect of habitus that physical prowess is more valued in policing organizations than are relational skills or emotional intelligence, and thus the former and not the latter count as capital in that organization. At the same time, the fact that physical strength is a principal form of capital is also an artifact of the lack of access to good investigative equipment or resources for conducting police work in other ways. Were the situation one where policing was highly resourced and personnel were provided with extensive investigative training, what counted as symbolic capital would (to some extent) shift, as would the habitus. To remain with the analogy of a game, the habitus might be the rules of the game, but any game takes place within an actual field that includes certain material conditions. In this sense, matters such as the physical layout of an organization, the availability of material resources, and the institutional structures that lie beyond that organization, but within which it is embedded, will all contribute to the habitus through which individuals act. This is an extremely important point that merits emphasis. It is also one that speaks to the interaction between some of the different factors that I discussed in Chapter 4. There, recall, I spoke about police attitudes toward the use of violence against detainees or suspects, as well as about the material conditions under which police work and live. I also raised the question of how we understand the frequently used, but rarely explained term “police culture.” So long as we assume a traditional dualistic ontology, we are likely to hold these two observations apart, and to see attitudes and material conditions as existing in different ontological realms, with the term “culture” applying to the former. Culture, in other words, is understood as some type of amorphous force that people carry around in their heads, or alternatively, something that 93

Pierre Bourdieu, “Genesis and Structure of the Religious Field,” Comparative Social Research 13 (1991): 5.

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floats within the collective mindset of an organization. Such fuzzy and abstract conceptualizations provide us with very little ability to get our hands on where culture resides, and to the extent that we think about how to change it, this tends to be equated with changing people’s minds or attitudes, separate from any changes in material conditions. What Bourdieu is suggesting is that habitus, the schemas for making sense of the world, or the field-specific cultures, are, to a significant extent, shaped by the distribution and organization of capital in the field, including its actual material constitution. Again, this is not to say that attitudes are simply artifacts of material or organizational conditions; but it is to say that how people make sense of the world, and what basic concepts like justice mean to them, are formed within a field of material conditions and practices. In this regard, a more useful way to understand culture is to think about it as embodied in practices, embedded in the conditions of the field. In this regard, Chan’s description of organizational culture as a set of “mental and corporeal structures,” which integrates past experiences and generates strategies for action, is very helpful.94 I come back to this question of organizational culture in Chapter 6. To take stock, what this ontological approach affords is a more sophisticated conceptual landscape for mapping what causes and sustains human rights violations. When individuals take actions or make judgments, they do so as subjects who are making sense of the world and choosing to embrace particular courses of action. In this sense, our strongly held commitments to the idea of moral autonomy and our experience of ourselves as subjects are held intact, as is the cogency of holding individuals responsible for their actions. At the same time, how they make sense of the world that occurs to them, the types of choices that they make, the values that they bring to bear in making those choices, and the repertoires of action from which they draw are not simply the products of their autonomous consciousness. They are rather shaped by the circulating meanings, normative understandings, and material conditions of the field where they are operating and the historical relations in which they are embedded. Still, even as Bourdieu recasts the dichotomy between structure and agency and elaborates a causal schema that does not take intentional autonomous individuals as its axiomatic base, his theory would still seem to retain a fundamental ontological split between the human or social world on the one hand, which provides the impetus for action, change, reform, persistence, and so on, and, on the other, those other aspects of the world, which remain barred from entering the realm of agency, that which acts or brings into 94

Chan, “Backstage Punishment,” 91.

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existence something that was not previously there. The subject or source of practice, change, or persistence has been expanded to include factors beyond the individual agent, but the nonhuman realm retains the status of “object” or context. His reference to Durkheim quoted earlier in this section acknowledges the social origin of mental structures, but not the material origin.

(iii) Agency Beyond Humans: Actor–Network Theory In this regard, actor–network theory (ANT) may furnish a potentially fertile resource. At the outset, I should acknowledge that because these two theoretical approaches diverge at a number of fundamental points, the attempt to supplement an account drawn from Bourdieu’s work with an account drawn from ANT may strike readers as a conceptual non sequitur, if not an affront to each body of thought. In particular, one of the hallmarks of ANT is precisely the rejection of abstract concepts like “habitus” and “field” – concepts that Bourdieu invoked to explain the sources of action but that, according to Latour, obscure precisely what needs to be investigated by postulating what needs to be explained.95 ANT insists that if we are going to actually understand the sources of action, invoking abstract higher-order forces (however sophisticated their refiguration) serves only to move our attention away from the highly local and particularized sites of association that we need to learn to trace. People who use ANT also generally eschew its purely theoretical articulation, insisting rather that it is a method for tracing associations in concrete situations and not an abstract system. Undeniably, there are important conceptual tensions between the approaches. Here, though, my purpose is not to render the two approaches compatible or to merge them to create a higher-order theoretical framework. I am rather using them in the spirit of what in Mahayana Buddhism is called upaya, or upaya-kausalya, usually translated as “skillful means.”96 Upaya designates a mode of teaching or learning where one is willing to draw on understandings or methods that are, from some ultimate perspective, not fully true, and may in fact be contradictory, but that provide access to the insight one is seeking to achieve. In this context, although fundamentally in tension because of their respective emphases on abstract higher-order concepts on the one hand, and immediate associations on the other, when combined the 95

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See, for example, Bruno Latour, “On Interobjectivity,” Mind, Culture, and Activity 3, no. 4 (1996); Reassembling the Social (London: Oxford University Press, 2005), 27–42. See Michael Pye, Skilful Means: A Concept in Mahayana Buddhism (London: Routledge, 2004).

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approaches offered by Bourdieu and Latour can afford the ontological expansions that we are seeking.97 Starting with the acknowledgement that “agency is about the most difficult problem there is in philosophy,”98 Latour shares with Bourdieu a dissatisfaction with a metaphysics that reserves agency exclusively for autonomous intentional individuals. As he sees it, though, an ontological rearrangement that seeks to overcome the inadequacies of modernist answers to the agency problem by reembedding human agents in fields of meaning and relationships that shape their operations provides an insufficiently radical response. Admittedly, this new schema subdues humans’ claim to an autonomous form of agency, but it still makes agency the preserve of individual humans, relegating the nonhuman to the role of ground or “the mere ‘material effect’ of natural objects, which . . . have ‘no agency’ but only ‘behavior’.”99 Contra this fundamental claim that agency is coincident with the human world and action with human consciousness, Latour suggests that we conceive of action not as something “done in the full control of consciousness,” but as “a node, a knot, a conglomeration of many surprising sets of agencies that have to be slowly disentangled.”100 The term “surprising sets of agencies” is critical, pointing us to Latour’s view that precisely what needs to be disrupted is the problematic dichotomization of subject and object and its constraining effect on how we can imagine the sources of action. Thus, whereas humans, endowed with consciousness, can act and be acted on, effect and be effected, “objects themselves remain invisible, in each case they are asocial, marginal and impossible to engage in detail in the construction of society.”101 It is at this point that we see the radical departure that ANT makes from the type of move I associated with Bourdieu. Latour does not suggest that the solution lies in recasting what we had previously (and problematically) classified as subjects and objects in a dialectical relationship, and resolving their apparent opposition through a higher-order synthesis. Rather, he invites us to keep the question of agency unresolved and remain open to the possibility of a non-intentional form of agency. He uses as an example, the “queer” experience that puppeteers report where “their marionettes suggest to them to do 97

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That contradictory teachings may be combined is explicitly acknowledged in a story told in Tevijja sutta (or the Discourse on the Three Knowledges) where the Buddha teaches two Brahmins using Vedic terminology even though in its theism it contradicts Buddhist understandings of ultimate reality. See Walsh, M. trans., “The Threefold Knowledge,” in The Long Discourses of the Buddha: A Translation of the Dı¯gha Nı¯ka¯ya, 235–52 (Boston, MA: Wisdom Publications, 1995). Latour, Reassembling the Social, 51. Ibid., 61. Ibid., 44. Latour, “On Interobjectivity,” 235.

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things they will never have thought possible by themselves.” This does not, he insists, “mean that the puppets are controlling the handlers” (for in that case, the object becomes the master in what remains a master–slave relationship). Rather, in the face of this experience, we are invited to remain in a state of suspension, not deciding who is acting, and shifting from “a certainty about action to an uncertainty about action.”102 It is worth slowing right down at this point to try to get a handle on the effect of what Latour is trying to do, because several mutually arising shifts are occurring. At the simplest level, it would seem that he is saying that we need to expand our conception of the types of beings that can be agents such that this capacity does not “limit itself to human individual actors but extend[s] . . . to non-human, non individual entities.”103 Note, though, that this will not be achieved by bringing objects into the tent of subjects while retaining the metaphysics of a subject–object dichotomy that has traditionally defined what we mean by a subject or agent.104 Thus, along with expanding the types of entities that can be agents, we need to alter the metaphysics of agency, action, causality, and of entities themselves. This requires, as he puts it, the ability to imagine “that there might exist many metaphysical shades between full causality and sheer inexistence.”105 In their agential capacity, for example, nonhuman “things” (for want of a better word) might “authorize, allow, afford, encourage, permit, suggest, influence, block, render possible, forbid and so on.”106 To assist in shifting the metaphysical assumptions attached to our understandings of agent and action, Latour introduces a new term, actant, to apply to “all beings who interact in an association,”107 or “something that acts or to which activity is granted by others.”108 This shift might in itself seem like little more than a linguistic sleight of hand, but Latour’s point, going to the heart of what is at issue here, is that at the same time as shifting our understanding of who or what can act, we need to shift our understanding of whence action arises, and with this, of the constitutional relationship between different types of entities involved in an action. Rather than thinking of action as a pure beginning (as distinct to reaction or behavior), wherein the actor must be the initiator, we do better to conceive of action as circulating among different 102 103 104

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Latour, Reassembling the Social, 60. Latour, “On Actor–Network Theory: A Few Clarifications,” Soziale Welt 47 (1996): 2. For example, “Either objects do nothing except deceive or they do too much. Either they are totally manipulated by humans; or it is them, on the contrary, which manipulate unsuspecting humans. Either they are caused or they cause.” Latour, “On Interobjectivity,” 236. Reassembling the Social, 72. Ibid. “On Interobjectivity,” 243. “On Actor–Network Theory,” 2.

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types of entities, which play a range of different types of roles in transforming what occurs. The effect is to produce a distributed conception of agency and an ontologically capacious map of causality.109 Importantly, this does not flatten out all actants to a single ontological status, as if prison walls and schedules for detention were the same type of thing as human beings with preconceived views, biases, and interests. Rather, it makes space for accommodating the different types of contribution they make to the production of certain types of outcomes, to the persistence of certain patterns of behavior or belief, and to the possibility of change.110 Despite the deep differences with Bourdieu, one can see a resonance in the two theories. Both displace the autonomous human agent as the unique site of causality by challenging the ontology of the individual (subject or object) as logically distinct. For Latour, what generated the apparent tension between individual action and higher-order phenomena like “society” was precisely our defining individuals as logically distinguishable from other actants in the first place. As soon as we recognize that “other entities” are always necessary for (or folded into) the existence of any individual, or in technical terms, that an actor is always an actor-network, the problem dissolves.111 For Bourdieu, this troubling of the ontological distinctness of the subject is effected by building habitus into the very possibility of subjectivity and agency.112 Admittedly, the two are quite different in how they trouble the identity of the agent, but for both, it is through introducing others into the very possibility of action (along with choice and values) that agency can be distributed.

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This is one point at which we see a critical difference between Bourdieu’s and Latour’s frameworks. For whereas ANT would see a set of linked and distributed actants, or what Latour calls “an actantial shifting-out,” Bourdieu would posit precisely the idea of a social structure or another level that Latour explicitly rejects. Nevertheless, a number of commentators have pointed to the challenge that this poses for some of the concomitants of the classical conception of agency, and in particular responsibility. Commenting on ANT, Fayaz Chagani writes, “insofar as ANT diminishes the importance of subjectivity, intentionality, consciousness, reason and all of the other weapons with which humans have maintained their distance from and superiority over the nonhuman world, it also erodes the foundations for tackling questions of responsibility.” Fayaz Chagani, “Critical Political Ecology and the Seductions of Posthumanism,” Journal of Political Ecology 21 (2014): 429. Bruno Latour, “Networks, Societies, Spheres: Reflections of an Actor-Network Theorist,” International Journal of Communication 5 (2011): 805–6. One might think here of Lacan’s notion that “I am an Other” in Jacques Lacan, “Aggressivity in Psychoanalysis,” in E´crits: A Selection (New York: WW Norton & Company, 2002), or, more poetically, Rimbaud’s “Je est un autre.” Arthur Rimbaud, Complete Works, Selected Letters, translated by Wallace Fowlie (Chicago: University of Chicago Press, 1966): 307.

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(iv) A New Social Imaginary for Human Rights? Could this distributed or embedded conception of agency and action provide a social imaginary within which human rights could be elaborated? Such a prospect would certainly constitute a challenge at the root, especially insofar as what gave rise to the human rights approach was the aspiration to ensure that individual moral autonomy was both protected from violation and enabled. And as I argued from the outset, any viable conceptual underpinning for the human rights project must retain this concern for the conditions that will support individual dignity. And yet, if we recognize that ideas are historically located and subject to discursive transformation, we should also allow that branches can take on configurations not encoded in the original roots. In the context of the eighteenth century, and as human rights gained in salience as a form of resistance in the nineteenth and early twentieth centuries, the project of liberating and ensuring the ontological distinctiveness of the individual drew its particular urgency and salience from a background of concerns about social collectives and all-powerful states overwhelming individuals. In the early twenty-first century, the priority of the human individual is well established as an ontological claim, albeit not universally, and poorly translated into the practice of universal respect. And yet the wrongs that constitute the subject of human rights – torture, various forms of discrimination, the denial of political voice, deprivation of the means for a decent and dignified life – remain in place, irrespective of the ontological recognition of the distinctive individual. Especially as we come to more comprehensively understand the complex relationships between human individuals, values, actions, and situations, it surely becomes possible to decouple principled concern for every human individual and their capacity to live a decent and dignified life from a particular philosophical conception of the nature of persons, or set of ontological commitments that require that humans be metaphysically extracted from other dimensions of the world. We can, in other words, be completely committed to the protection and promotion of certain standards concerning the social and political conditions and relations required for individual dignity, without being completely committed to a conception of agency that may in fact be impeding the achievement of those standards. Moreover, as I have been arguing throughout this chapter, separating out the work of punishment from the work of prevention, and recognizing them as two distinctive and complementary dimensions of the human rights project, can assist us in reimagining human rights. Punishment ensures that individuals are held accountable for their actions, honors the irreducible value of

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those damaged by the wrong, and plays a critical constitutive role with respect to the authoritative affirmation of norms condemning the wrongs in question. Prevention is then somewhat freed up to attend to all factors that contribute to the wrongs, irrespective of the ontological status of those factors and without the burden of needing to perform or express particular types of ontological or ethical commitments and principles. In simpler terms, if attending to the material conditions within which individuals act is the most effective way to alter the patterns of their actions, it is to this task that preventative work can attend. And if an imaginary framework that distributes agency or reconceives of action illuminates the co-contribution of factors with different ontological statuses (people, norms, incentive systems, the layout of buildings, and so on), it is this one that will be most conducive to this work. Needless to say, the prospect of shifting this social imaginary will necessarily lie beyond the purview of philosophy, not least because social imaginaries are not the product of an abstract idea but the secretion of a set of interlocking practices, engagements, relationships, and ideas. Whether this alternative ontological frame and metaphysics of causality can have any practical uptake in the field will depend on several further steps. One will be its articulation in terms that are accessible and that can be directly linked with the actual problem of torture and the circumstances under which it occurs. This would mean drawing out the different types of causal factors (both in terms of the different levels and in terms of specific factors) and mapping them against these alternative conceptual frameworks. Given that we already understand many of these causal factors, the novelty here will not be their articulation, but the relationship between them and how they occur to us. Following from this, a further step will be designing interventions that are capable of addressing the different types of casual factors that can now be incorporated into the causal story. That is, to return to the idea of a ToC, once we have established a more complex understanding of the causes of torture, and then a more capacious map, we will then need to develop tools for shifting the full range of causal factors we have identified. As I set out in Chapters 1 and 2 and Section 1 of this chapter, in the torture prevention field we already have at hand a range of interventions that seek to directly change individuals, for example, through punishment or human rights training. And there exists a fairly well-established set of principles about some of the key situational factors that need to be changed. Where I would argue the major gap lies is in our practical understanding of the types of strategies that we ought to adopt to alter the different types of situational factors that are at work in any particular context. The principal tools that human rights organizations have deployed – political pressure and legal reform – contribute, in different ways, to this task,

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but they are not sufficient. What is required is closer attention to the principles and practices of institutional and cultural transformation, and specifically to how to bring about institutional transformation in the actual contexts where torture is endemic. Tackling these challenges is the subject of the next two chapters.

Vignette 6

It’s very early days in the project and I am still trying to work out who would be the best disciplinary experts to be part of the team I’m putting together to carry out research on what we know about the causes of torture. Talking through a few ideas with a colleague, he tells me, “You need to appreciate that torture is part of a political program, for the most part the expression of neo-imperialist political logics.” I have no reason to disagree with him. I’d read Marnia Lazreg’s masterly book on the use of torture by the French in Algeria, and I’d tracked the development of the United States’ contemporary torture program from the first moments of righteous fury after 9/11, through the assiduous weaving of those intense emotions with the latent imperialist ambitions of the neocons. The thing is this. Like so much of macro-theoretical analysis, it remained completely opaque to me how tracing these undoubtedly critical vectors of power and political logics could offer anything to the practice of trying to prevent torture. True enough, this type of analysis could provide a powerful framing for antiimperialist social movements, but even then, I’d read enough about postrevolutionary politics to know that when the dust has fallen, the establishment of institutions and cultures respectful of human rights was far from guaranteed. So yes, I could see the appeal of these types of political-structural diagnoses, but sometimes, if I’m honest, I also find them just too grandiose. It might sound disrespectful to say this, but sometimes, even horrendous human rights violations are committed for reasons that are so much more banal, rooted in what is much closer. As a former member of the Israel Defense Force (IDF) described of her days detaining Palestinians at check points, it was not that she got an order and not that she had any special intelligence on them; she wanted to be part of the gang, and she was bored.1 Now, that does not 1

The testimony was given to the Israeli NGO, Breaking the Silence. See Breaking the Silence; Because I’m Bored, vol. Video catalog number: 50422.

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mean that imperialism or political logics of repression were not at work in the background – the IDF and the Israeli state’s programmatic repression of Palestinians being a case in point. But between those macro logics and the acts of torture there are all of the intervening variables that make torture possible, feasible, and even reasonable from the perpetrator’s point of view. The macro logic is not something you can get your hands on, but maybe you can get your hands on these processes and structures. I imagine that feminists have worked through a similar set of reflections and questions when they draw the connections between sexual harassment and patriarchy – connections that move through a range of way stations, such as unequal wages, gendered hierarchies in the workplace, and the circulation of disparaging discourses about women and femininity. When I have argued that if we want to prevent torture, we need to turn our attention in these more matter-of-fact and less dramatic directions, I have often felt that people with a structural bent see this as a cop-out. Anything short of taking apart the deep logic, torture’s equivalent to capitalism, is ultimately just playing on the surface. Does this imply that until we can get at that deep driver, we best do nothing? And is the causal sequence so linear and unidirectional – moving from deep logics and structures up through mid-depth systems and finally to surface arrangements? Is the only site worth changing the nucleus at the bottom of this causal sequence? Do we imagine that once we change this, everything follows? Could it not also be, in the tradition of religions that emphasize daily practices, that changing arrangements, symbols, the forms of relationships, the systems that shape incentives, and so on, also work in the other direction – reshaping systems and then structures and logics? That conversation happened right at the beginning, but this tension – between getting at what we can actually get our hands on and recognizing the dynamics and logics that are beyond our reach – haunts how I think about the business of torture prevention. Only now, I also know that even changing what is on the surface is not so easy.

6 Taking Situational Theory to the Field

1 THE DIFFICULT MOVE TO THEORY

In the Introduction to this book, I suggested that if a particular type of strategic approach to torture prevention is to be taken up, several “planks” need to be in place. First, the case needs to be made that the proposed strategy could be effective in preventing torture. Second, it needs to be shown that it is suitable or feasible in the contexts where it is to be applied. Third, there needs to be an appropriate “fit” between the approach and the field “in which” it would be taken up. The work of the first four chapters of this book was dedicated to the first and second planks, and the previous chapter focused on the third, by reflecting on the ways in which human rights, as currently imagined and practiced, might be in tension with situational understandings of the production of torture, and by beginning to rearticulate a social imaginary of human rights that would afford a better fit. Yet even if the case is well made, and even if human rights as a field were hospitable to the situational approach, the work of operationalizing this type of prevention approach into concrete strategies and programs would still need to be done. It is at this point, when we leave the realm of theory and hypothetical argumentation, that matters become really difficult. Indeed, in a number of respects, if one adopts a multidimensional situational analysis of the etiology of torture, where causality is understood as complex, and “causes” as themselves co-constitutive, then making the move to practice presents a number of serious challenges. If actions emerge from, and are shaped by systems of meaning and structural fields that inform each other, then how can change be introduced? This problem came up at the end of the previous chapter in the context of discussing the political implications of Latour’s theory. The risk is well summarized by one critic who worried that “insofar as ANT diminishes the importance of subjectivity, intentionality, consciousness, reason and all of 233

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the other weapons with which humans have maintained their distance from and superiority over the nonhuman world, it also erodes the foundations for tackling questions of responsibility.”1 If agent responsibility can no longer be conceived as it once was, and if agency is itself dispersed and intrinsically distributed, pinpointing the most effective site of intervention becomes a complicated matter. This difficulty of translating theory into practice can be brought more sharply into focus if we go back to the ecological model introduced in Chapter 3. Recall, in that model, different spheres – including the individual, organizational, social, cultural, legal, political, and ideological – constituted an interacting system within which judgments are made and actions taken. The model does not imply that the interactions between or within spheres are smooth or without conflict;2 but it does imply that one cannot simply intervene in one part of the overall system and anticipate that the behavior of individuals will change in a linear manner. This is true both insofar as individuals are influenced by the dynamics within all of the various spheres, and insofar as the different spheres are (co-)operating on each other. Given that the ultimate objective is to change behavior, the implications of this complex multidimensional dynamic would seem to be serious. As Latour observes, the insight that “everything is connected” would seem to imply that we need to “take everything into account,” an implication that may well leave us paralyzed.3 If nothing short of doing everything will do, why do any one thing? And if one does something, which something should it be? One response to these questions is simply to affirm the analysis and agree that one needs to address all parts of the system in a coordinated manner, also taking into account how they interact with each other. The answer seems reasonable enough, but its reasonableness rests on its abstractness. As soon as one asks what it would look like in practice, or how one would go about acting on this prescription within institutional and resource realities, the abstract ideal provides little succor. Indeed, I would go a step further and contend that formulating plans whose appropriateness rests on their abstractness is to indulge the fantasy that one could transcend the realities of intervention; for within this reality, factors such as the availability of resources, access, and time, the existing skills and aptitudes of the actors and organizations involved, and the history of past interventions always shape and constrain what is 1 2

3

Chagani, “Critical Political Ecology,” 429. In fact, as I indicated in Chapter 3, without denying the force of dominating dynamics, they would be more accurately characterized as internally heterogeneous or, following Anna Tsing, patchy. Tsing, “Earth Stalked by Man.” Latour, Politics of Nature, 198.

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possible. Any theory capable of contributing to an intervention strategy needs to be tempered by the practical considerations that inevitably inform any actual intervention, among which are that one can never intervene everywhere; indeed, numerous institutional and resource constraints will likely restrict where and how one can intervene at all. My objection to this type of idealized or abstract modelling needs to be articulated with some care. I am not rejecting the usefulness of developing heuristic schemas that provide a basis for subsequent in situ experimentation and adjustment. Used thus, the model constitutes a basic template that provides the practitioner with the essential features of an effective intervention, which she will subsequently adjust in light of situational variations or practical constraints. The problem is that in the case of the model we have crafted, the very adjustments one would need to make are ones that will unavoidably deprive the model of the essential features on which its claim to efficacy rests. The comprehensiveness of intervention was not an incidental and expendable feature, and thus shaving off a few of the dimensions will not be an adjustment, but an essential departure. The ideal modelling thus relies on its untranslatability, and its appeal relies on perennially deferring “practical” considerations. Such thinking risks turning the ideal into the unreal.4 There is also a second significant difficulty in moving from theories that advocate situational approaches to torture prevention to putting this approach into practice. I have certainly argued that part of the problem is that insufficiently broad attention has been paid to understanding and mapping the full range of institutional factors that underpin torture; but even if we know what they are, this does not tell us how to change them. And even if we know how to change them, that is, even if we have filled in the second half of the ToC, it may, for various reasons, be difficult or impossible to implement the required actions. We might call this the difficulty of access. In Chapter 1, I set out a number of the strategies that human rights organizations have traditionally adopted to try to bring about situational reforms, including advocating for laws requiring reform, putting pressure on political leaders through naming and shaming campaigns, and establishing expert monitoring bodies that will draw authorities’ attention to the changes that need to be made. Then, in Chapter 2, I considered the limited reach that these different strategies seem to have had. In particular, evaluations of torture prevention strategies consistently point to the limits of legal reform in itself, that is, where it is not underwritten by institutional muscle, or where cultural and systemic 4

On the dangers of ideal theory see Charles W Mills, “‘Ideal Theory’ as Ideology,” Hypatia 20, no. 3 (2005).

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factors push in directions contrary to those advocated in formal laws. They also point to the scope conditions for naming and shaming to be effective, and the impediments this strategy faces precisely in those contexts where torture is most endemic and normalized. One might well ask, then, why do so many human rights organizations continue to use these strategies? The answer, I would suggest, is unlikely to be anything as simple or superior as their not having recognized their limits. As Korey pointed out in relation to Amnesty’s understanding of the effect of a UN declaration on the incidence of torture, “only political naivete would have assumed that a UN Declaration would end the continuation and spread of torture,” and “Amnesty hardly fit that category.”5 A significant part of the answer, I would argue, is to be found in the fact that security sector organizations, and the ecology within which they are located, are not simple objects that can be the target of change strategies. The closed nature of many of the organizations that need to be reformed, their capacity to sustain existing practices and systems and to resist external influence or control, and the fact that such practices and systems are deeply entrenched and rooted in history, informal norms, and expectations (or habitus) all combine to make “getting at them” extremely difficult. Little wonder that law reform remains a favored strategy; difficult as it can be, at least human rights organizations, working with civil society activists and sympathetic political parties or political representatives, can get their hands on the law. Getting one’s hands on how security sector organizations or criminal justice systems organize their internal affairs, or on their cultures, will often be out of reach. In this chapter and the next, I consider the movement from situational theory to the practice of designing and implementing actual interventions, with an eye to these realities, or perhaps even better, these “truths of practice.” I do this by describing and critically reflecting upon the project that formed the basis of this book – a project where we attempted to contribute to the prevention of torture by addressing situational factors. From the outset, I want to be clear that I think that a fair assessment would conclude that, as it played out, the intervention that we developed and piloted failed to prevent torture. I thus do not offer it as a model to emulate. Nevertheless, carefully tracing the moves that it made, where it stumbled, and the factors that impeded it offers up important insights, both into what makes this type of approach so treacherous, and into how others might navigate the inevitable obstructions they will confront to build more effective situational interventions. 5

Korey, NGOs and the Universal Declaration of Human Rights, 171.

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Describing how the project unfolded and the different stages that it went through from the vantage point of hindsight presents some difficulties, mostly because I now know much of what I did not know at the outset, and it was precisely as a result of living through the process of the project that I acquired this knowledge. I make this point because so much of our writing skirts around and so obscures the many difficulties and unknowns that characterize working one’s way through a problem in real time, substituting in place of this uneven narration a neat picture produced in retrospective analysis. Writing in this way perhaps preserves the image we wish to project, but it robs others of the guidance that they might derive from a more unashamed narration; guidance that might assist them when they inevitably find themselves in a territory without a map. For this reason, my aspiration here is to trace the logic of the intervention so as to show how, in an actual case, a consortium of partners tried to build on the insights of a situational analysis to develop and implement a prevention intervention. As both the chronicler of, and a protagonist in this drama, my narration will unavoidably involve omissions and distortions. So far as possible, I try to give a candid portrayal not only of what we did and the reasons we made the choices to do what we did, but also of what constrained our making other choices, and what we missed. In Section 2 of this chapter, I provide some background on the project, describing its inception and development, the institutional partners and funders, and the broad outline of the project design and its different stages. Those stages are then discussed in greater detail in the remainder of this chapter and the next, with this chapter concentrating on the phases of research and the development of the partnerships that underpinned the project, and Chapter 7 concentrating on the actual intervention. Section 3 of this chapter sets out how we conducted the research on the root causes of torture, or the factors that create risks of torture occurring, the results of which have already been discussed in Chapter 3. Section 4 discusses the key findings of the research on cultural and institutional change that informed our intervention design. Section 5 surveys the research on attitudinal and behavioral change, primarily from the field of public health, that we conducted and from which we subsequently drew certain principles that guided our approach. Before commencing the narrative, a final note about omissions. My principal purposes here are to explain the logic underpinning the way we designed the project and the decisions we took, to identify the structural or situational impediments that we confronted in our effort to develop an effective situational approach, and to reflect on how we negotiated, or failed to effectively negotiate, these impediments. As such, I omit from the narrative two other dimensions that undoubtedly contributed to how the project played

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out – the personal/interpersonal, and the organizational/interorganizational. The first includes factors like frictions between personalities, conflict arising from individuals’ agendas, jealousies, insecurities, and ambitions, and the toll that working in this field takes on individuals and teams. The second, organizational dimension includes factors like problems in the distribution and sharing of resources, constraints and conflicts concerning administrative, financial and contractual matters, and tensions arising from divergent organizational styles and cultures. These omissions should by no means be taken to imply that these dimensions have no bearing on how a project runs and what it can achieve. They most certainly do, and my sense is that the habitual tendency to leave them out of the stories we think are worth telling about our work, or factors we deem worthy of analysis, results in our missing much of what actually shapes what happens. I omit them again here, however, as their inclusion does not serve my specific purpose. 2 THE TORTURE PREVENTION PROJECT

If the seed for the project was my longstanding interest in understanding the social and cultural underpinnings of human rights violations, the spark that catalyzed my pursuing it was a conversation with the brilliant scholar of torture Darius Rejali. In a talk on torture at an Amnesty International event in Sydney, Darius commented that thinking about groups that routinely perpetrate torture as subcultures might illuminate their operation. This speculation is connected with Rejali’s larger analysis of the informal transmission of torture techniques, and his understanding of torture as a type of craft, where apprentices acquire their skills through being integrated into a group, and acquiring an understanding of “the way we do things around here.”6 Rejali’s distinctive insight about the subcultural character of groups that routinely use torture spoke to a larger body of research, some of which is canvassed in Chapter 3, which traces the connections between particular types of organizational cultures and situational factors and the use of systematic violence.7 It also suggested the hypothesis that altering those situational factors and organizational cultures might make a contribution to preventing torture. This hypothesis then formed the foundation of the project.

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Rejali, Torture and Democracy, 421. A particularly important text in this literature is Martha Knisely Huggins, Mika HaritosFatouros, and Philip G Zimbardo, Violence Workers: Police Torturers and Murderers Reconstruct Brazilian Atrocities (Berkeley, CA: University of California Press, 2002).

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The two countries in which we decided to explore whether this approach to prevention might yield positive results were Sri Lanka and Nepal. This site selection was based on a combination of reasons, some involving the features of these countries that made them suitable candidates for an intervention seeking to prevent torture, and some more pragmatic, involving issues such as access. In both countries, the routine use of torture by security sectors had been well documented. Both countries had also recently emerged from armed civil conflict, and in both there was strong advocacy for some type of transitional justice process, met by rhetorical gestures toward processes that would strengthen democracy. In view of evidence indicating that periods of democratization and political transition may offer fertile opportunities for addressing human rights violations, the political junctures present in both Nepal and Sri Lanka suggested them as suitable sites for an intervention seeking to address patterns of human rights abuse that had long been entrenched.8 In truth, and as soon became evident once we began our work, these rhetorical gestures proved to be largely insincere, and the political situations were better characterized as retention of the political status quo than as transition. This was particularly, and indeed starkly true in Sri Lanka, where the Rajapaksa regime remained firmly in power until the final moments of the project, with no intention of departing from its longstanding patterns of abuse, denial, and hostility to human rights. As it transpired, the lack of serious commitment to transitional justice or strengthening democracy and the rule of law in either country acted as political-level factors that militated against bringing about changes in other levels, and constrained any bona fide shifts in the security sector. Indeed, as I will discuss, in Sri Lanka they infected the project at every stage. Alongside these reasons for choosing these two countries was the far more practical one that it was in these two countries that our human rights institutional partners (the Centre for the Study of Human Rights at the University of Colombo in Sri Lanka, and the Kathmandu School of Law in Nepal) had been working on human rights issues with national security sector organizations for many years. As the work that we planned required our having access 8

As Hafner-Burton and Ron argue, during periods of democratization, “local human rights activists may be able to incorporate international laws and norms into emerging new institutions.” Hafner-Burton and Ron, “Seeing Double,” 371. On the effects on human rights of transitional justice, see Oskar NT Thoms, James Ron, and Roland Paris, “State-Level Effects of Transitional Justice: What Do We Know?,” International Journal of Transitional Justice 4, no. 3 (2010).

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to and the cooperation of these often inaccessible organizations, and thus their willingness to engage on a human rights project with external partners, such institutional links and a history of cooperation were a sine qua non of getting the project off the ground, being able to conduct research, and having them take part in piloting interventions. That said, the fact that the security sector organizations came into the project through our invitation (as distinct from approaching a human rights organization for assistance) may have detracted from the project’s prospects of success. This observation already points to one of the factors that will influence the success of situational prevention: the readiness or pre-orientation of the target security sector organization, although, as I will go on to discuss, the relationship between the orientation of the organization and the likelihood of change is not a linear one. On the one hand, a commitment from the organization itself to enter into a process of organizational change, as distinct from its being externally compelled to do so, seems to be critical to the success of such processes. In our case, their coming into the project without coercion may have been indicative of such commitment. On the other hand, as Jem Stevens demonstrates in her survey of change processes in closed institutions, external drivers, such as commissions of inquiry or legislative requirements that bring pressure to bear on an organization, can be necessary to catalyze and motivate change processes.9 Again, in our case, in both countries such external pressures did exist in the form of civil society advocacy and international criticism. The decision of the security sector organizations entering the project was not, however, a direct response to these pressures. Nevertheless, as a more general point, we ought to note that these two factors are in tension with each other. External pressure may be necessary to push an organization to enter and sustain the process of reform, but unless there is commitment from within the organization, transformative processes may be resisted. Starting this narrative at point zero of the project, what we knew at the outset was that we wanted to work out how insights into the situational and systemic factors that cause and perpetuate torture could form the basis for developing effective prevention strategies. When it came to designing an actual project, it became clear that this was an impossibly general aim, which needed to be narrowed down to a specific objective, with an accompanying sequence of operationalizable processes and actions. Based on the initial thinking about the role that the subcultures of security sector organizations might play in torture, the decision we made was to focus on seeking to bring about changes 9

Jem Stevens, “Changing Cultures in Closed Environments: What Works,” Law Context: A Socio-Legal Journal 31 (2014).

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to situational factors within those organizations. Importantly, this meant that from the outset it had already been determined that the intervention was going to take place at a particular level: security sector organizations. Certainly, we had always intended to conduct broader research that would seek to identify the full range of factors that cause and sustain the use of torture, and not limit ourselves to identifying factors within the security sector organizations themselves. Nevertheless, we decided from the outset that it would be at the organizational level that our intervention would take place, and this decision subsequently committed the project to a particular path. That it did so was not simply a matter of rigidly sticking to a plan, nor of the bureaucratic impediments to varying the plan, which I discuss in this chapter. Rather, deciding that this was the level at which the intervention would take place determined critical choices, such as the types of relationships that we needed to build and the type of research that we needed to conduct. For example, had the initial plan been to seek to bring about changes in other spheres within the overall ecology, say in the criminal justice system or in the broader society, the organizations with whom we would have needed to broker and build relationships would have been quite different. Early commitments create a certain path dependency that cannot easily be broken. Before describing in detail and critically reflecting upon what occurred at the various stages of the project, it will be helpful to provide an overview of how those different stages fitted together as part of the overall plan. Beyond providing a roadmap for the reader, I am including this overview because I want to make the point that in project planning, the overview precedes what unfolds, and this in itself can present challenges for an approach that seeks to work at the situational level. Most projects, particularly those reliant on external funding, have to pre-commit to a certain course of action, and thus need to preempt how they will unfold. The problem is that where the plan itself involves conducting research as a way of determining the best course of action, it is critical that the project has the capacity to respond to what the research finds and what transpires as the work unfolds. In our case, applying for and obtaining funding from our funder, the European Commission, required our having a well-formulated plan in place. For the European Commission, as for many major funding agencies, the project management tool used is the “log frame,” which requires the clear articulation of the overall and specific project objectives, the expected results, the actions that will be taken to achieve those results, the resources required to support each of those actions, and the time frame within which each stage will occur. Like other project planning and management tools, the log frame is notionally understood as a “living” instrument, which ought to evolve with a project.

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In practice, adjustments are limited to those that fall within a certain scope and are unlikely to stray too far from the project median, especially where permissions for variations need to be proposed to and approved by the funding agency. In other words, the process itself has a fair degree of structural inflexibility built into it. This type of requirement makes sense for funding bodies, which understandably need to make judgments about the approaches to which they are going to lend their support. The problem is that this precludes actions truly being formulated on the basis of, and responsive to research that is conducted within the life of the project itself. Given that metaevaluations of preventive approaches have found that conducting targeted empirical research at the site of the intervention before actually developing the intervention is one of the conditions for success, this matters.10 The structural inflexibility I am pointing to here will be relatively unproblematic where the fundamental research has already been conducted so as to provide a robust framework for the approach being taken. Where this is the case, the “new” component can be limited to conducting in situ research to provide finer-grained details on the specific context. Where, however, the project involves asking more fundamental questions about how to approach the problem, the inflexibility can represent a significant constraint. In our case, we did depart from the actions we had originally planned in some significant ways, but in others found ourselves bound to a particular course of action, even in the face of contraindications arising from our research. Again, this observation about a constraint that we experienced has broader implications for projects that seek to develop responsive interventions. It also points to the way in which what might seem like peripheral issues – planning processes, funding arrangements, and so on – can influence how interventions play out. The basic architecture of the project involved four phases, complemented by a number of auxiliary actions aimed at ensuring that the relationships required to support the project were sustained and productive.11 The first phase was to conduct research into what we originally described as the root causes of torture but which, as I outlined in Chapter 3, I came to believe were better conceived of as the factors that create conditions for torture to occur, or

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Nation et al., “What Works in Prevention”. The principal mechanism for building and sustaining the relationship with the security sector organizations was a reference group established in each country, and including senior representatives of the security sector organizations as well as representatives from relevant government authorities and civil society organizations. Given their history of working together, and the political sensitivities, the oversight of these relationships was primarily within the purview of the partner organizations in Sri Lanka and Nepal, the Centre for the Study of Human Rights at the University of Colombo and the Kathmandu School of Law.

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that create risks of torture occurring, and correlatively the factors that inhibit torture. Many of the findings of this research are set out in Chapter 4. Corresponding with the second part of any ToC (which posits a theory for how one alters the causes one has identified), we also conducted research on approaches that had been adopted to bring about organizational, behavioral, and normative change. Here we focused on change strategies targeting human rights violations in the security sector, but also looked at approaches in cognate fields that sought to prevent or eradicate normatively problematic behaviors. The findings of these two aspects of our research then formed the basis for the second phase, which involved devising a ToC, and out of this designing an intervention that would operationalize the ToC. As I will discuss, because our objective was to pilot the intervention, and this required the security sector organizations providing us with access to work with them and their people, the intervention that we came up with at this point had to be one in which they were willing to partake. This meant building in a consultation process that navigated a path between ensuring the independence of the project and the integrity of the design, and creating a proposal that would not be rejected by the security sector organizations. It also meant that the translation from the ToC that emerged from the research and the intervention design had to be one that took into account considerations of practicality and feasibility. The third phase was the implementation of the prevention strategy that we had designed and that had been agreed upon by the security sector organizations. Because of how we had designed the process, this in fact involved a two-step process. The first was working with a select group of security sector personnel, or “change agents,” to build their capacity to identify situational factors and devise projects to address them. This step corresponded to what we had originally (as I will explain) envisaged as a modified training, although how we worked with personnel significantly departed from traditional training models. The second step then involved supporting the change agents to identify the situational factors that created risks of torture occurring within their sphere of influence, to develop project designs to address those factors, and then to implement their prevention projects. The fourth and final stage was evaluating the overall impact of the project and specifically whether it had been successful in contributing to the prevention of torture.

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3 RESEARCHING THE FACTORS THAT CONDITION OR CAUSE TORTURE

Chapters 3 and 4 set out the principal findings of our research into the factors that condition or cause torture, and as such I will not reiterate them here.12 Presenting the research methodology after presenting the results of the research may strike some readers as reversing the logical (and certainly the standard) sequence. My reason for ordering the material this way is that whereas in Chapter 4, I wished to provide an illustration of what I meant by an ecology of situational factors, in this chapter, I wish to explain how we went about seeking to develop and implement a prevention intervention that attended to situational factors, and it is in this context that we need to now understand how we came to the understandings that we did. The research was conducted along two parallel dimensions: one general or universal, where disciplinary experts considered the types of factors that create risks of or that condition the use of torture,13 and the other country- and context-specific, where country-based researchers with in-depth knowledge of the sites sought to map the factors that were operating in each country and in the organizations where our work was focused.14 The entire research team met early on in the project to discuss and agree upon an overall research strategy, to negotiate and clarify the specific research tasks for each researcher or research team, and to develop horizontal relationships that would support collaboration and information sharing.15 To carry out the in-country research, teams were established within each of the two partner institutions, the Kathmandu School of Law and the Centre for the Study of Human Rights at the University of Colombo. As well as the 12

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14

15

See also Kiran Grewal and Danielle Celermajer, EHRP Issues Paper 3: Human Rights in the Sri Lankan Law Enforcement and Security Sector (Sydney: University of Sydney, 2015); EHRP Issues Paper 4: Human Rights in the Nepali Law Enforcement and Security Sector (Sydney: University of Sydney, 2015). To this end, a team of experts was commissioned to review the literature in their respective areas, with a focus on political science, criminology, sociology, social psychology, law, and anthropology. For this part of the research the experts were Professor Darius Rejali, Professor Janet Chan, Professor Jack Saul, and Professor Gameela Samarasinghe. The country-based or field research teams were managed by a research director, Dr. Kiran Grewal. They comprised (in Nepal) Aastha Dahal, Rohit Karki and Pradeep Pathak, and (in Sri Lanka) Kaushalya Ariyarathne and Vidura Prabath Munasinghe. This team also included three people who were brought in primarily to assist in translating the research into a pilot intervention. Michael Griffin brought extensive experience of doing human rights and humanitarian law training with security sector personnel. Dr. Astrid Birgden came in as an expert in developing and leading cultural transformation projects in the security sector. Anna Noonan came in with project management, capacity building, and training design expertise.

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primary empirical research, each team also conducted background and contextual research. In this regard, we looked at the relevant legal framework and institutions in each country, including legislation, jurisprudence, and institutions, examining both their formal and de facto operation. Second, we examined the types of approaches to torture prevention (including human rights training) that had been adopted in the past in each country. Third, we surveyed which other key organizations, both domestic and international, were involved in torture prevention, their programs and approaches. Fourth, we sought to understand the historical, cultural, social, and political factors relevant to understanding torture in the respective countries. Finally, we examined the structure and operation of the specific security sector organizations on which our work was focusing, that is, the police and APF in Nepal and the police and military in Sri Lanka. As well as seeking to understand the specific factors that perpetuate torture and impede prevention in their country contexts, the country-based teams also sought to understand the perceptions and experiences of personnel within the security sector organizations. Their primary focus was on their experience and understanding of human rights, torture, and the regulation of violations, but we also wanted to capture more generally how they understood their role, as well as their relationship with the community and other institutions. The reasoning behind our taking this type of phenomenological approach to the research was grounded in our understanding that change strategies are most effective when they are attentive to the people and organization to which they are directed. Meta-evaluations of effective prevention programs in the cognate field of public health have shown that formative research on the target group is critical to bringing about attitudinal and behavioral change.16 In fact, referencing the development of interventions in this field, Donovan and Vlais argue that “formative research is not only necessary to avoid unintended negative consequences, but also to map out the complex web of attitudes, beliefs, knowledge and skills relevant to the behavioral objectives.” They go so far as claiming that mounting a behavioral change project without a sufficient understanding of this complex web not only risks failing to bring about change, but can strengthen the “undesirable attitudes,” and they conclude that under such circumstances, it is better not to proceed at all.17 Research in public health indicates that before one even begins to think about the substance of an intervention, it is critical to have an eye to the readiness of the 16

17

Nation et al., “What Works in Prevention;” Casey and Lindhorst, “Toward a Multi-Level, Ecological Approach.” Donovan and Vlais, VicHealth Review, 197–98.

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target audience to receive prevention messages.18 A failure to recognize that target groups or organizations are at different stages in terms of knowledge, attitudes, and skills will reduce the likelihood of achieving change.19 The types of interventions appropriate for a group or organization that does not believe that certain behaviors are a problem at all will, for example, be quite different to the type one might bring to a community that has been working on that issue for many years. More specifically to this context, understanding the “police-eye” view was also seen as a way of navigating the type of resistance and co-optation that often occurs when security sector personnel are confronted with human rights programs.20 Given this dual focus on the problem and the people, a significant component of the research directly involved personnel from the security forces. In the case of Nepal, both the police and APF provided permission for fairly unconstrained access to personnel for interviews and for observation of work sites. In Sri Lanka, however, this permission was denied until the very end of the project. Accordingly, in Sri Lanka, interviews with security sector personnel were limited to those we were able to conduct with retired personnel who were willing to speak with us, and off-the-record interviews. Some observations did take place, but they were highly constrained. Finally, at the tail end of the life of the project, permission was afforded to conduct primary empirical research with police in Sri Lanka. While the data from this research was included in the discussion in Chapter 4, because we collected it too late in the process, it could not be used in the intervention design. Because of the country differences, I discuss the research in each country on its own. Using key informants, semi-structured and in-depth interviews, focus group discussions, and observation, field research was conducted in Nepal over the course of approximately one year. As well as the police and APF (discussed later in this section), interviews were conducted with 18

19

20

Again, developed in the field of public health, the idea of community readiness refers to the degree to which a community is prepared to take action on an issue. The community readiness model (CRM) developed by the Tri-Ethnic Center for Prevention Research at Colorado State University provides a tool for assessing a community’s culture and readiness for change and provides resources to develop and implement change strategies appropriate to the assessed stage of readiness. See Ruth W Edwards et al., “Community Readiness: Research to Practice,” Journal of Community Psychology 28, no. 3 (2000); Barbara A Plested, Ruth W Edwards, and Pamela Jumper-Thurman, Community Readiness: A Handbook for Successful Change (Fort Collins, CO: Tri-Ethnic Center for Prevention Research, 2006). A similar logic underpins the employment of training needs assessments in the development of education and training programs. See Equitas and United Nations Office of the High Commissioner for Human Rights, Evaluating Human Rights Training Activities. Rachel Wahl provides the most extensive analysis of the importance of understanding this police-eye view. See Wahl, Just Violence.

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representatives of the Attorney-General’s Department, the National Human Rights Commission, and the Ministry of Home Affairs, legal professionals, medical professionals, and civil society and victims organizations. Participants were selected using a purposive sampling technique to ensure, wherever possible, participation from both genders and from different ethnic, social, and class/ caste groups, as well as those with different levels of experience, education, and status/rank and from different geographical sites. For the research with police, six districts were chosen as samples to represent various regions across the country: Kathmandu, Lalitpur, Bhaktapur, Chitwan, Sunsari, and Parsa.21 These districts were selected by taking various factors into account, including whether the area was rural, semirural, or urban; the population composition; the level of ethnoreligious diversity; the socioeconomic as well as political context of the area; the level of impact of the conflict on the district; and the reported prevalence of human rights violations in the district. Observation was conducted over a period ranging from one week to one month in five police stations, one each from Kathmandu, Lalitpur, Bhaktapur, Chitwan, and Sunsari. These were selected on the basis of the different economic, social, cultural, political, spatial, and demographic characteristics of the sites, their public flow and outreach, the number of criminal cases they handled, and geographical and population coverage within which these stations were located. At least seven personnel from each of the police stations, as well as personnel from community police stations from rural Kathmandu, were selected as interview respondents or to participate in focus groups; there were sixty in total, with proportionate representation of different ranks based on the total composition of the organizations. Likewise, forty-three APF personnel from three different battalions stationed in Kathmandu and from other districts were interviewed or took part in focus groups. The research in Sri Lanka was, as noted earlier, split into two periods, lasting approximately one year, and five months, respectively. The research conducted directly with police during the second phase is thus described separately. Again, using purposive sampling, semi-structured and in-depth

21

In discussing the site selection and methodology, I note that early on in the process, we had considered the possibility of a different research and intervention design that we believed would afford more robust data for the purposes of assessing the efficacy of our intervention. Drawing on literature on “social experiments,” we considered selecting paired sites that were compatible with respect to key variables, and then piloting the intervention in one of each pair only, so as to have data that would show the effect of the intervention. This design proved not to be feasible. See Abhijit V Banerjee and Esther Duflo, “The Experimental Approach to Development Economics,” Annual Review of Economics 1, no. 1 (2009).

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interviews were conducted with legal professionals, trainers in human rights and other related areas, civil society organizations, the National Human Rights Commission, and the National Police Commission. In addition, focus group discussions were conducted with judicial medical officers. With respect to the primary research on the police and military, in the first instance we examined primary and secondary documentary data on human rights training for the police and military, as well as on the laws, rules, and regulations that the security forces are bound by and that (formally) they have to implement in their service life. During the preliminary research period, direct research was limited to observations of human rights trainings for police and military, some limited observation of police stations, and focus groups with military personnel. The team observed two training workshops delivered to members of the police, one for pre-service training and the other for in-service training, both organized by the police. They also observed four human rights trainings for inservice members of the military. Of these, two were organized by the military itself, and two by the Sri Lankan partner, which had been providing human rights training for the armed forces for some years. As we did not have control over the selection of the sample, data was collected from the available participants, but notably all trainings were for lower- and middle-ranking officers. Participants included men and women belonging to different regiments/ branches and ethnicities, who had different educational levels, and who were from different geographical areas. During the first research period, the team conducted two periods of observation in police stations in Killinochchi and Vavuniya in the Northern Province, an area gravely affected by war. Two-day observations were conducted covering every branch of each station. In addition, through their participation in the human rights trainings that we organized, military participants were randomly selected to take part in five focus groups. All were middle-ranking officers, and they included men and women from different ranks, regiments, or branches and ethnicities, with a range of educational levels and from different geographical areas. During the final phase of the project, where access was provided, we were able to conduct more direct empirical research on how Sri Lankan police operated and to speak directly with active police. During this phase, we also conducted forty-two interviews and eight focus groups with representatives of a number of other groups to explore the perceptions and experiences concerning the use of violence by police. These groups included community members (including youth, women, fishermen, members of the business community, and farmers), NGO personnel working in the area, government officials,

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mediation board members, medical and legal professionals, and clergy. Indepth interviews were also conducted with twelve police officers of both genders and from different ranks. Over the five-month research period, extensive observation was also carried out at the police station and at community events where police were involved. As the reader will already have garnered from Chapters 3 and 4, where some of the findings of this research are presented, the breadth of the data was enormous. It provided us insight both into the macro factors that are discussed in those chapters, such as societal tolerance and even support for the use of torture against certain types of people, political corruption and interference, and the stagnation or failure of legal sanctions against torture. It also allowed us to see how certain micro-level factors that conditioned or sustained the use of torture operated within the security organizations themselves. These included factors such as a lack of ethical leadership at the local level, poor investigative skills, discriminatory attitudes to particular social groups, pressures to meet quotas for charges laid, the lack of basic equipment or infrastructure, the inadequate pay and mistreatment of junior officers, the failure to link promotion or other positive rewards with respect for human rights, and in some instances, positive incentives to the use of violence against detainees. It also became clear that many security personnel had an ambivalent and complicated relationship with human rights. Many expressed a general embrace of human rights principles, and yet when we drilled down into what they actually meant, matters became far messier. Many insisted that fully respecting human rights was impractical, and that they would not be able to do their jobs if they did what “human rights people” wanted them to do. Moreover, as Rachel Wahl found in her research on police in India,22 many insisted that their jobs involved protecting important values like justice and serving their communities, and sometimes they even appealed to the language of human rights to describe what they were doing, but then described actions that were clear violations of human rights. The conflicts between security sector personnel and human rights were not, though, only conflicts over interpretation of what justly and properly doing their job entailed. There are also conflicts rooted in identity. Some security personnel expressed their hostility toward human rights organizations, telling us that human rights organizations were set against them, not because of their actual behavior, but because of who they were, and that no matter what they did, “it would not be good enough.” It is certainly difficult not to write such comments off as their resentment at being held accountable or their desire to 22

Wahl, Just Violence.

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act with impunity, but the point I wish to draw from this finding is that such differences came to be entrenched in their sense of identity. In this sense, some security personnel framed human rights and human rights organizations as their “other,” much in the same way as many human rights organizations frame security sector organizations as theirs. In this regard, even though, as the former UN Special Rapporteur on Torture Professor Manfred Nowak said, “security forces are first and foremost protectors of human rights,”23 the idea that one could both realize one’s ideal identity as, say, a good police person and be a human rights defender was, for some, oxymoronic. This was by no means universally the case, with some personnel indicating a strong aspiration to be on the side of human rights. These complications and tensions concerning what it means to be a “good police officer” (for example) point to just some of the difficulties involved in working to alter the organizational and cultural factors that condition or sustain torture in the name of protecting human rights. They also pointed to the need to think strategically about how to bring about organizational cultural change without provoking the type of resistance that would derail any impact. 4 BRINGING ABOUT ORGANIZATIONAL AND CULTURAL CHANGE

(i) Working Out Where to Look As I discussed at some length in Chapters 1 and 2, developing an effective prevention intervention requires both accurately identifying the causal factors that need to be targeted and knowing how to bring about changes to the way those factors operate. In the case of our project, our research identified a number of processes, practices, or structures operating at the level of the security sector organizations that qualified as candidates for the first part of that equation, but we still needed to work out how to alter them. Organizational culture was also identified both in the literature and in our empirical research as part of what sustained the use of torture. Now, we needed to go beyond knowing that organizational and cultural change needed to occur within the security sector organizations, to understand how to bring such change about. To this end, the second component of the research phase that formed the foundation for the development of a ToC and an intervention

23

The comment was made in his opening remarks at a conference we held on torture prevention and the security sector, in Bangkok in 2014. See Celermajer, Conference Report, 8.

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involved examining what types of strategies were effective in bringing about organizational and cultural change, particularly in the security sector. As I discussed in Chapter 2, empirical research on what has been effective in prevention indicates that while legal reform is a necessary condition for altering the organizational practices that create risks for torture occurring, it is by no means sufficient. There is, however, little in this literature to tell us what would be sufficient, particularly when it comes to effective means for addressing pathogenic organizational cultures in the security sector that are most resistant to legal reform. Yet even determining the type of research or cases that might be considered relevant for working out how to change the organizational practices and cultures of security sector organizations is somewhat contentious. Normally, where there is a gap in the research, an obvious first move is to step sideways, and look at processes that have been found to be useful in other types of (cognate) situations. In this case, this would involve looking at the principles and practices of reform in other organizations, and at cultural, attitudinal, and behavioral change with respect to other pathological behaviors, and then to considering their applicability in the security sector. Obvious candidates would be the literature on organizational change, developed largely in the context of corporations or government departments, and the public health literature concerned with shifting pathological attitudes and behaviors in relation to, for example, violence against women. In this case, however, the distinctive character of the security sector might augur against such comparative moves. Recall, I argued that making the case for a particular type of prevention strategy to be taken up involves not simply showing that it is effective in general, or in any place, but that it is appropriate to the context in question – here police and military organizations. With this in mind, one needs to be mindful of what is distinctive about the security sector. To start with, these organizations operate according to a strict command structure, with high levels of obedience expected. Even as we recognize that security personnel are agents, and thus responsible for what they believe and what they do, we also understand that in the context of the military or police, the suppression of their individual agency is both part of the modus operandi of the organization and one of the processes that facilitates torture. Moreover, when security personnel use torture or inflict violence, they often do so as part of a set of political and institutional imperatives, and as such their actions can, in some ways, be considered continuous with the organizations’ core functions. By contrast, the corporations and government departments that have been the subject of most of the organizational change literature do not operate according to a rigid command structure and do not

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require complete obedience from, or the complete integration of, individual personnel. Similarly, even as public health interventions recognize that the people whose behavior they are targeting belong to loosely affiliated groups (sports clubs, for example), or identity groups (young men of a particular race or class, for example), and that these group affiliations may have a significant influence over their beliefs and behaviors, they are not seen as having primacy over individual identity. As such, there are good reasons to be cautious about applying the principles and practices appropriate to these other settings to the challenge of organizational change in security settings. And yet, to insist that security sector organizations share no characteristics with other organizations, or that pathological behavior in the context of security organizations is completely sui generis, and thus what we have learned elsewhere bears no relevance to the security sector, erases the similarities that do exist. As we saw in some of the literature discussed in Chapter 2, even though security sector organizations are embedded in larger political structures, and may be subordinate to them, they are not immune to the dynamics typical of organizations. Correlatively, other organizations may not operate according to the same type of formal command structures, but this does not mean they are not subject to the dynamics of obedience and conformity that operate in the security sector. Further, as we have seen, the use of torture, particularly the everyday torture that is the concern of this book, should not be understood as simply the effect or outcome of political orders, nor is it always an epiphenomenon of a larger political logic or program. Rather, everyday torture results from the interaction of a complex of more dispersed factors: the cultural and social understandings of the use of violence, norms and beliefs about the worth of certain social groups, and a range of individual and situational factors that normalize and routinize violence. The model of the dutiful foot soldier obeying higher orders is in many cases far less apt than the model of the individual enculturated into an environment where torture has been normalized. Certainly, the content will be sui generis in the case of police or military settings, but the dynamics we found relevant, like dehumanization, discrimination, the routinization of violence, compliance and conformity, the assertion and abuse of power, understandings of masculinity, and minimizing the significance of abuse are precisely the types of dynamics that have been the concern of organizational change and public health research and practice. In this regard, a judicious application of what we have learned about transforming values and attitudes associated with behaviors like gender-based violence can enhance our toolkit for preventing the use of torture in security settings.

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Finally, it is critical to keep in mind here that in taking a situational approach to torture prevention, the reforms we are trying to work out how to bring about are to organizational processes and structures that create conditions for torture occurring. By definition, this approach involves placing our attention on aspects of how security sector organizations operate that are not self-evidently linked with torture, but that create conditions for torture to occur. For example, recall that in Chapters 1 and 2 I discussed the consistent finding that introducing certain practices in relation to conditions of detention, such as medical inspections, has a significant preventative effect, but that in security organizations operating in contexts where the rule of law is weak and where resources are scarce, bringing about such reforms has been difficult. In this sense, the organizational reforms that a situational approach might recommend might be thought of as reforms that more generally professionalize or improve the organization, with their effect on torture being a byproduct of such improvements. In this regard, many of the lessons we have learnt from organizational reform in general are clearly relevant. With these considerations in mind, we examined studies on what had been effective in bringing about organizational and cultural change specifically in security sector organizations, but also considered more broadly the research on organizational and cultural change, and the public health literature on normative and behavioral change. Recognizing the important contextual differences, we also appreciated that any principles and practices derived from these other contexts would need to be applied mindfully. (ii) Principles of Organizational and Cultural Change Summarizing lessons learned from his involvement in hundreds of efforts to bring about fundamental changes in organizations worldwide, the Harvardbased organizational change expert John Kotter concluded that a few had been successful, a few utter failures, and most had fallen at the lower end toward failure.24 This is certainly a sobering conclusion. Nevertheless, the experiments that often gave rise to such failures have generated a wealth of knowledge about the nature of organizational change. I do not provide a comprehensive survey of what we found here, but rather focus on the key principles that were relevant for developing our ToC and institutional design.

24

John P Kotter, “Leading Change: Why Transformation Efforts Fail,” Harvard Business Review 73, no. 2 (1995).

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Following from Kotter’s comment, one of the first observations that stands out from this literature is the difficulty of bringing about something more than superficial or fleeting change. The problem here may be that change efforts are narrowly focused on quite particular processes in the organization, and do not comprehensively attend to how those processes fit in with larger structures and other processes.25 Similarly, relying on extraordinary events (like organizational retreats) as catalysts for transformation results in perhaps dramatic, but short-lived impacts that dissipate as soon as the quotidian demands of the job recur. Kotter argues that “change sticks when it becomes ‘the way we do things around here,’ when it seeps into the bloodstream of the corporate body. Until new behaviors are rooted in social norms and shared values, they are subject to degradation as soon as the pressure to change is removed.”26 Kotter’s references to social norms, shared values, and what “seeps into the bloodstream” draw our attention back to that term “culture” that people frequently referenced in explaining why torture persists. “Culture” here seems to act as a placeholder for some type of indistinct substrate that underpins the more explicit dimensions of how an organization operates – elusive but nevertheless powerful in its effects. It thus does a lot of work as an explanatory device, but if we cannot more precisely articulate what organizational culture is, or where we might find it, we will be poorly positioned to alter it, a task that would seem to be necessary if authentic and sustainable transformation is to be effected. As one senior police leader in Nepal commented during a conversation, “it is not so hard to change structures, but changing a culture of an organization is a much harder thing to do.”27 Janet Chan’s research on organizational cultures in the police proves helpful here. Chan defines organizational culture as the “mental and corporeal structures” that integrate past experiences and generate strategies for action,28 and distinguishes five dimensions of culture: axiomatic, dictionary, directory, recipe, and bodily knowledge. Axiomatic knowledge refers to the basic assumptions held in an organization about who we are and why things are done the way they are. This is the “taken-for-granted truth” about the organization and its identity that does not require articulating or defending. That the role of the police is to protect the interests of the political elite and to keep the population under control would be an example of axiomatic knowledge in a police force in an authoritarian system, in contrast to the axiomatic equivalent in 25

26 27 28

As I will discuss, evaluations of prevention in public health point to comprehensiveness and attention to structural and systematic factors as two key features of effective prevention. Kotter, “Leading Change”. Navaraj Dhakal, Additional Inspector General of Police, Kathmandu, April 11, 2014. Chan, “Backstage Punishment,” 91.

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a democracy, which (at least as an ideal) might be that the role of the police is to protect the rights and security of members of civil society. Axiomatic knowledge has the strongest influence and can cause the greatest resistance to change, both because of its shaping force and because it is implicit, and therefore difficult to manipulate. The dimension of dictionary knowledge refers to the systems of classification, for example, between those who deserve to be treated respectfully and those who do not. It provides the definitions and labels for people, things, and events that security personnel encounter in their work. For example, there may be a labeling system such that “everyone knows” that hardened criminals and drug addicts need to be beaten severely if they are to provide any information; or people belonging to certain religions may be objects of suspicion. Like axiomatic knowledge, dictionary knowledge need not be spelled out explicitly, but can be read from others’ habitual ways of treating and understanding particular groups. If a new recruit witnesses that certain groups of people are habitually treated in particular ways, it will not take long for them to abstract that such treatment goes hand in hand with that identity as a matter of course. Directory knowledge refers to standard operating procedures. These include both the organizations’ formally articulated procedures, and their more informal ones. For example, when people run away from police, they are violating a basic code and should be harshly treated. Recipe knowledge captures the normative dimension of cultural knowledge – that is, what should or should not be done in certain situations. This may include observing a “code of silence” around your peers’ infractions, or an ideal of masculinity involving covering up any emotions associated with the job or stress. Finally, bodily knowledge refers to the ways in which bodily comportments associated with the organization develop. Walking a certain way or having a certain type of body might, for example, be part of what it means to be a police person. Perhaps because of the idealizing tendencies of modernist thought, bodily knowledge is often omitted from our conceptualization of culture, but if one reflects for a moment on the distinctive comportment of people from different subgroups, the ways in which our experience of our own and others’ bodies mark us out become apparent.29

29

Feminist philosophers have been far more attentive to this bodily dimension, as one sees, for example, in Iris Marion Young’s essay “Throwing Like a Girl.” See Iris Marion Young, On Female Body Experience: “Throwing Like a Girl” and Other Essays (Oxford: Oxford University Press, 2005).

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Chan insists, at the same time, that organizational culture needs to be understood as one dimension of a multidimensional space that includes organizational processes and structures, those more concrete or explicit aspects of how an organization works. Organizational processes are here understood as the practices that influence the types of opportunities or constraints for individual action. In the case of torture, they might include factors such as the conditions of detention, the presence or absence of surveillance (technological or by civil society actors), and the lengths of shifts and the basic conditions under which personnel operate. Organizational structure refers to those aspects of the organization that create incentives or disincentives for personnel to behave in certain ways. In the case of torture, these may include internal systems of discipline that penalize personnel who are suspected of using or supporting the use of torture, accountability and promotions systems that include compliance with human rights as a key metric, and so on.30 The interaction between these processes and structures and culture is well illustrated by considering how culture can constrain the operation of systems of accountability. A system of internal accountability will rely, to a significant extent, on personnel speaking out in relation to violations, but where recipe knowledge includes a norm of protecting one’s peers, those systems will be undermined.31 Change strategies thus have to address both dimensions. Using a somewhat different, but similarly multidimensional schema, Johnson distinguishes the dimensions of an organization as paradigm, control system, organizational structure, power structure, symbols, rituals and stories/ myths, and routines.32 Like Chan, Johnson notes that the organizational paradigm will rarely be articulated as such, but will be made manifest in the other dimensions, and could be read, for example, in the organization’s rituals and myths.33 Recognizing this elusive quality of paradigm, in our empirical research we tried to get at it by asking our respondents to tell us what they thought the basic role or purpose of the organization was, or to describe an ideal member of the organization, as well as seeking to discern the paradigm 30

31

32 33

As noted in Chapter 4, to a considerable extent, the structures that shape incentives with respect to torture are located beyond the security sector organization itself, at the legal, political, or community level. To the extent that the security organization has purchase on influencing such external incentive structures it will always have to do so in concert with the dynamics operating at other levels of the system. I come back to the power of and constraints, of this type of internal accountability in my discussion of bystander interventions in Section 5. Gerry Johnson, “Rethinking Incrementalism,” Strategic Management Journal 9, no. 1 (1988). Johnson defines “paradigm” as a “generalized set of beliefs about the organization and the way it is or should be” and concludes that “since it is taken for granted and not problematic, [it] may be difficult to surface as a coherent statement.” Ibid., 85.

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by observing how personnel behaved and the types of understandings that seemed to be taken for granted. As in Chan’s model, the cultural dimension, which we might identify with paradigm, symbols, rituals, and myths, is distinguished analytically, but stands in a co-constitutional relationship with the other dimensions. By implication, the problematic practices and structures of the organization that I discussed in Chapters 3 and 4 are not operationally distinct from culture, but constitute its external dimensions, shaping and being shaped by people’s knowledge, behaviors, and understanding. Culture is not a symbolic layer that could be stripped away, but is woven through the “hard” dimensions. Accordingly, comprehensive organizational change must similarly operate through the weave and weft of the different dimensions. Recognizing how structure, process, practice, and meaning are thus woven has important implications for the process of bringing about change. For example, it renders evident the flawed logic of traditional “linear” models of organizational change.34 According to the schema assumed in linear models, organizational cultures are like objects or dependent variables that can be predictably influenced by manipulating independent variables. What this approach fails to acknowledge is that the very people who weave the meaning of the organizational culture and whose understandings have been constituted through their involvement in the organizational practices cannot simply be lifted out of the existing situation, changed, and dropped back and expected to act differently. Correlatively, one cannot change the structures and processes that constitute a culture’s external dimensions, drop the same people back in and expect their “mental and corporeal schemas” to be mechanically changed. Any change process always has to engage with people in already existing settings, with already existing understandings, habitual ways of acting, and patterns of meaning. Indeed, recognizing the stagnation that this type of embodied path dependency inevitably brings, some reform efforts have tried to bypass history by replacing large swathes of existing personnel.35 34

35

Ellen Earle Chaffee, “Three Models of Strategy,” Academy of Management Review 10, no. 1 (1985). The replacement of police personnel as part of political transitions after periods of systematic human rights violations is one approach to overcoming dysfunction in the organization. In the case of El Salvador, this involved the attempt to replace the entire police force. See Michael Dziedzic, “Policing the New World Disorder: Addressing Gaps in Public Security During Peace Operations,” in Toward Responsibility in the New World Disorder: Challenges and Lessons of Peace Operations, edited by Max G Manwaring and John Fishel (London and New York: Routledge, 1998), 150–51. The process bears some resemblance to the strategy of denazification or lustration used respectively in the period after WWII in Germany and in the post-communist transitions in eastern and central Europe. More esoterically, the Bible says of

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Similarly, recognizing the centrality of paradigm has a number of important implications. First, it helps to explain the often superficial and ephemeral effect of piecemeal or grafted interventions. Because the paradigm comprises a set of mutually supportive and reinforcing propositions woven through the different dimensions of the organization, it cannot be shifted or dismantled by addressing a single aspect of the organization or a single set of beliefs. Consistent with the conceptual framing that underpins the ecological model described in Chapters 3 and 4 and the complex ontologies discussed in Chapter 5, we need here to understand how the practices, processes, or structures that we distinguish analytically, in practice form a self-reinforcing web. Moreover, because the paradigm is closely linked to the power structures in the organization, leaders’ own positions will be embedded in and supported by the existing paradigm, and as such, changes to that paradigm may represent a threat to their success or survival. This points to the importance of moving beyond attempts to rationally convince leaders of the need for change by pointing to improved outcomes, and the need to engage them at the level of these deep and implicit meanings and investments. In a similar vein, strategies for change that are imposed on organizations from the outside are likely to be integrated into the existing paradigm or, if they cannot be integrated into the paradigm, then resisted. This points to the importance of developing strategies that are both continuous with and at the same time able to bring subtle shifts to existing understandings and practices. Paradigm, though, as noted, is also expressed and conveyed through the organization’s symbols, rituals, and myths. Symbols are here understood as the “objects, events, acts or people that convey, maintain or create meaning over and above their functional purpose”; rituals are the activities or events that emphasize, highlight, or reinforce what is especially important in the culture; and stories or myths are the narratives about people or events that are immortalized through repetition across time.36 For an organization where the culture normalizes and sustains torture, it is likely that its symbols, rituals, and myths will work to bind those working within it with its abusive history.37 At the same

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the fact that the Hebrews spent forty years in the journey from slavery in Egypt to freedom in the promised land, “And the Lord’s anger was kindled against Israel, and he made them wander in the wilderness forty years, until all the generation that had done evil in the sight of the Lord was gone” (Numbers 32:13). Gerry Johnson, Kevan Scholes, and Richard Whittington, Exploring Corporate Strategy (Essex: Pearson Education, 2008), 198–99. John W Meyer and Brian Rowan, “Institutionalized Organizations: Formal Structure as Myth and Ceremony,” American Journal of Sociology 83, no. 2 (1977); Chaffee, “Three Models of Strategy.”

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time, because these dimensions of culture are, unlike paradigm, tangible, they also afford possible sites of intervention. Reform efforts in the police in Northern Ireland, an organization that had been deeply embroiled in the human rights violations associated with the repression of Irish nationalists and in which the use of torture had become systematic, point to how these dimensions can be accessed as part of a broader cultural change process. In her analysis of the change process that took place in this institution, Michele Lamb observed that as originally constituted, various aspects of the ritual and symbolic environment powerfully linked the organization with “folk memories of the wider Protestant/Loyalist, Unionist community” as an “innocent and misrepresented community” that needed to be protected against terrorism.38 She documents the fierce attachment that officers had to their existing symbols and rituals as a sign of their importance in anchoring the organization in its historical, but problematic cultural identity. When an Independent Commission on Policing was established to examine the problems with the police force and recommend changes, it specifically recommended as a point of intervention the organization’s “words and symbols.”39 For example, changes recommended and subsequently implemented included changing its name from the Royal Ulster Constabulary (RUC) to the Police Service of Northern Ireland (PSNI), introducing a new oath where personnel pledged their loyalty to uphold human rights rather than their allegiance to the British crown, and changing the crest to one that equally included British, Irish, and Northern Irish symbols. Reading these recommendations, one might reasonably object that such changes are naively shallow and fail to get at the site where culture actually resides, often thought to be people’s intentions or attitudes. And yet a number of the empirical studies where researchers have closely examined how people became torturers, including studies of torturers in Brazil and Greece, demonstrated the important role that language and terms of art play in forming ingroups or subcultures in which torture came to be normalized.40 Similarly, the famous inquiry into institutional racism in the London Metropolitan Police Service that followed its abysmal handling of the racially motivated murder of 38

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Michele Lamb, “A Culture of Human Rights: Transforming Policing in Northern Ireland,” Policing 2, no. 3 (2008): 389. Independent Commission on Policing in Northern Ireland, A New Beginning: Policing in Northern Ireland – the Report of the Independent Commission on Policing in Northern Ireland (Belfast: Independent Commission on Policing in Northern Ireland, 1999). Haritos-Fatouros, The Psychological Origins of Institutionalized Torture; Huggins, HaritosFatouros, and Zimbardo, Violence Workers.

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a young black man, Stephen Lawrence, found that the police’s racist values were transmitted (inter alia) through so-called canteen culture, “the small talk between police at the operational level.”41 In his encyclopedic study of the transmission of torture techniques, Rejali similarly observed the ways in which the transmission of special practices and specialist languages creates and sustains in-groups that then normalize torture, as he puts it, through “a language with new words and expressions so that they can talk about various things without being understood by outsiders.”42 In pointing out how ritualized languages solidify the relationships between those who belong to the ingroup and shield them from transformation through outside influences or interventions, Rejali is also, though, pointing to the limits of an approach that sought to shift culture through an imposed, mechanistic manipulation of language. Examining the literature on cultural change in organizations, particularly in closed environments such as policing or the military, several principles and practices emerge for effectively transforming the culture of organizations. Here I articulate them as distinct categories, but obviously, they work best in combination. First, leaders’ commitment to, and actions consonant with change are critical. Across the literature, leadership is identified as a central, if not the most important factor in bringing about organizational and cultural change.43 Literature on police reform in particular stresses the importance of leadership. A study commissioned by the Vera Institute, for example, found that the most important factor in altering a police culture was the leadership of the commanding officer.44 Similarly, in its report on the organizational cultural transformation of policing in Toronto, the Ontario Human Rights Commission stressed the importance of unified, committed, and involved leadership, and that leaders follow through with action on their 41

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Sir William Macpherson, Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny (London: Her Majesty’s Stationery Office, 1999), 6.28. An example given is that when an officer saw a black person driving a nice car he might remark, “I wonder who he robbed to get that?” (at 6.12). The incidents that catalyzed the inquiry included the police’s complete failure to pursue the white youths who were present at the scene of the murder and whom Lawrence’s (black) friend had indicated had been responsible. Rejali, Torture and Democracy, 462. Nigel King, “Modelling the Innovation Process: An Empirical Comparison of Approaches,” Journal of Occupational and Organizational Psychology 65, no. 2 (1992); Junseob Shin and George E McClomb, “Top Executive Leadership and Organizational Innovation: An Empirical Investigation of Nonprofit Human Service Organizations (HSOs),” Administration in Social Work 22, no. 3 (1998). Robert Carl Davis and Pedro Mateu-Gelabert, Respectful and Effective Policing: Two Examples in the South Bronx (New York: Vera Institute of Justice, 1999), 20.

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commitments.45 At the same time, it stressed that to be effective, leaders for change must have an intimate understanding of the operations and culture of the organization and specialized knowledge and skills to catalyze change. Instigating change, in other words, requires both that leaders are embedded in the organization and that they acquire specialized skills – skills that they are unlikely to have as a result of their existing and regular professional experience. Still, one should be cautious of prescriptions that place too much emphasis on leaders, and the apparently magical belief in the capacity of the charismatic leader. As Schein points out, this type of fetish of leadership is based on the problematic assumption that leaders somehow stand outside organizations and all of their dynamics, whereas it is more accurate to say that leaders both constitute and are constituted by the organization.46 In this regard, the Ontario Human Rights Commission insisted that leadership not be understood as existing only at the top of an organization, but that leaders could and should be located at different levels and in different parts of the organization.47 In a similar vein, while highlighting the importance of frontline leaders in the field, a study of the transformation of the police force in Durban, South Africa stressed the importance of leaders engaging the people who are part of their team through, for example, discussing problems and reflecting on how to tackle them.48 Balancing the imperatives of leadership with the importance of active cooperation from the rank and file, this analysis concludes that what is required is a broader organizational transformation toward more participatory forms of leadership. This in turn implies that changing an organization so that its practices and cultures are consonant with human rights rests not only on ensuring that leaders are on board and appropriately equipped with the right set of skills, but that the very form or model of leadership must shift to one that

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Ontario Human Rights Commission, Human Rights and Policing: Creating and Sustaining Organizational Change (Toronto: Ontario Human Rights Commission, 2011), 20ff. The importance of leaders’ actions is a consistent theme. See, for example, Kotter, Leading Change. As he puts it, “Leaders create cultures, but cultures, in turn, create their next generation of leaders.” Edgar H Schein, Organizational Culture and Leadership, 3rd edn. (San Francisco: Jossey-Bass, 2004), 313. This is consistent with Chan’s understanding of distributed leadership. She writes that leadership “is necessary from every level and every division of the organization, not simply from the top,” and that the organization must “create a suitably supportive climate to encourage and reward such leadership.” Chan, “Backstage Punishment,” 237. Monique Marks, Transforming the Robocops: Changing Police in South Africa (Scottsville, South Africa: University of KwaZulu-Natal Press, 2005), 153–59.

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is itself consistent with human rights principles, such as mutual respect and fundamental equality.49 This points to the second principle, which is that no matter how powerfully leaders insist on change, it will not occur without the involvement and investment of the people who make up the organization. As police expert David Bayley insists, “the grain of the organization must be made to work with, and not against, reform.”50 This also means that those seeking to bring about change strategies have to be prepared to undertake the time-consuming work of consulting personnel to get their views and to appreciate their concerns so that they are brought on board. Creating a coalition across the organization and building approaches from the bottom up by, for example, involving all personnel in the process of developing interventions will be critical to success.51 An interesting example here is the process that was undertaken to reform a Scottish psychiatric hospital, specifically to align its operation with human rights principles. To work out what needed to be changed, a human rights audit on existing practices involving all staff and patients was carried out.52 Going through this process was a way of communicating to the “rank and file” that they were themselves the source of ideas about what needed to be changed and how, thus giving them a sense of ownership and active voice. At the same time, it provided an opportunity to educate them about what human rights involve and mean in very practical terms. More specifically in the policing context, in a study of efforts to implement community policing, Rachel Neild found that regular rank-and-file police personnel themselves rather than outside “experts” or those high up in the police hierarchy were often the source of the most useful ideas.53 Of course, given how enculturated the rank and file may be to abusive norms and practices, such bottom-up approaches must be combined with skillful and committed leadership that establishes clear standards concerning what is acceptable and what will not be tolerated in the transformed institution.54

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Ibid., 159–60. David H Bayley, Democratizing the Police Abroad: What to Do and How to Do It (Washington, DC: National Institute of Justice, 2001), 20. O’Neill, Police Reform and Human Rights. Scottish Human Rights Commission, Human Rights in a Health Care Setting: Making It Work. An Evaluation of a Human Rights-Based Approach at the State Hospital (Edinburgh: Scottish Human Rights Commission, 2009). Rachel Neild, Police Training: Themes and Debates in Public Security Reform: A Manual for Civil Society (Washington, DC: Washington Office on Latin America, 1998). O’Neill, Police Reform and Human Rights.

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The need for the personnel who constitute the organization to transform their practices points to the third principle – that change is most likely to be successful when it takes place in a way that the personnel in the organization can assimilate. Organizational change can be difficult and confronting for personnel enculturated and accustomed to a certain way of doing their jobs and can provoke feelings of inadequacy and a sense that they lack competence. The result can be a loss of self-confidence and frustration as they find themselves confronted with unfamiliar and new demands. In the context of preventing torture, it would be understandable that we would have little sympathy, if not outright disdain, for this type of response. Why should we care how personnel accustomed to treating detainees violently feel when change processes requiring them to desist are introduced? As justifiable as such responses are, however, they help us little in dealing with the realities of resistence and the ways in which it is likely to impede reform. As Austin and Claassen argue, “While people in organizations are able to change, adapt, learn, and unlearn as they find new ways to operate within their workspace, it is important to understand how staff experience change and the methods used for increasing staff acceptance and support of change . . . It is the defensive and adaptive tendencies that sustain the status quo and usually block learning and change.”55 Again, when applied to a change process like eliminating the use of torture, it may seem obscene to think of security personnel needing to learn “new ways of operating” in their workspace. In this context though, we might recall how Martin drew on Michael Lipsky’s work on street-level officials to understand prison guards’ use of torture in Tihar Jail in India. As Martin argued, in Tihar Jail “the least harmful way to conduct one’s work involved inflicting suffering on others.”56 When this path is blocked, frustration and resistance are likely to ensue, and need to be negotiated. Correlatively, Robbins and his co-researchers stress that “readiness is likely to be a major factor in determining whether an innovation will be effectively implemented and sustained.”57 They point to three factors that will be particularly important in supporting uptake and minimizing pushback. Personnel must see it as necessary for the change to occur; they must see that the particular changes being introduced are appropriate in the current situation; 55

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Michael J Austin and Jennette Claassen, “Impact of Organizational Change on Organizational Culture: Implications for Introducing Evidence-Based Practice,” Journal of Evidence-Based Social Work 5, no. 1–2 (2008): 332–33. Martin, “Taking the Snake out of the Basket,” 147. Vestena Robbins et al., “Evaluating School Readiness to Implement Positive Behavioral Supports,” Journal of Applied School Psychology 20, no. 1 (2004): 53.

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and they must feel that they are agents of the change rather than having the change imposed on them. In this regard, Roger’s work on diffusion of innovation has been widely recognized as instructive in identifying those features of a strategy that will assist in ensuring the sustainability of change. The first is relative advantage, which refers to the perceived advantage that the change has over the current practice. Second is compatibility, meaning that the more consistent the change is with prior work, the greater the likelihood the change will be sustained.58 Third is complexity, again indicating that simple changes are more likely to be adopted than complex ones. Fourth is trial-ability, indicating the value of change being implemented in stages rather than in its entirety. The last is observability, indicating that changes where the immediate effects are seen and experienced by personnel will be implemented faster and potentially sustained longer than when those effects only occur over the long term.59 This third principle has some practical implications when applied to the context of security sector organizations. As a general matter, it implies that reform projects need to be designed in a manner that anticipates, acknowledges, and responds to resistance and the perceptions underlying it. This requires risk management planning from the outset. More proactively, one way to neutralize or deal effectively with resistance will be to have change led and supported by change agents who are respected personnel within the organization – people who are committed to bringing about change, but who are not seen as outsiders, and for that reason as ignorant of the realities of working in the organization. At the same time, as I have repeatedly argued, neither in their operations nor in their cultures do security sector organizations exist in hermetically sealed environments. They are always already embedded in a broader ecology. By implication, what can be assimilated within the organization will be influenced by how change is supported and complemented by people and systems beyond the organization. This is true in the institutional sense, insofar as the various actors will directly influence institutional reform (by, for example, refusing to admit evidence obtained under dubious conditions), but it is also true in the more amorphous cultural

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There is much one could say about each of these, but compatibility requires particular comment. The whole point of reform, one could argue, is to introduce ways of behaving that are incompatible with the status quo. In this regard, compatibility has to be understood in a limited way, as the idea that in introducing changes there needs to be some continuity. This might take the form of, for example, framing the change in terms that are already accepted within the organization, or using existing processes, like rewards and promotions, as the institutional infrastructure to facilitate the change. Everett M Rogers, Diffusion of Innovations (New York: The Free Press, 2010), chapter 6.

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sense. Here, we might recall Crelinsten’s argument that patterns of thinking and the meaning attributed to different social groups throughout society “allow[s] the reality construction to spread into more and more spheres of political and social life until it is sufficiently anchored in law, custom and discourse to define what is right and wrong, what is permissible and what is not.”60 The fourth principle, which flows directly from the argument that process–structure–culture form a multidimensional space, is that change must be effected across the different dimensions of the organization. A comprehensive organizational change approach requires attention to all aspects of the work and structure of the organization, although in practice, the focus will need to be on key areas. Chan suggests that this multidimensional ethos can be organized by ensuring that change strategies attend to the content of change, the process of change, and structural changes. By “content” here she is referring to the need to redefine what counts as “good practice” so that traditional and pathological cultural knowledge can be replaced with “professional” cultural knowledge. Attending to the process of change means establishing a workplace that rewards problem solving and innovation rather than mistake avoidance. Structural changes are the range of related mechanisms that will continue to exert pressure toward change, such as external and internal monitoring systems, quality reviews, reward and accountability structures, and the empowerment of citizens.61 In this regard, one of the key recommendations coming out of the report on the Ontario police conducted by the Ontario Human Rights Commission was that human rights change needed to be embedded in regular, standard organizational processes like recruitment, selection and promotion, and performance management and accountability, and not be cordoned off as a distinct process within, say, “training.” This also implies that the identified and resourced agents of change should not be personnel identified with the training or human resource unit, but must be embedded throughout the operational dimensions of the organization. When the RUC (the Northern Ireland Police) was undergoing its reform process, this type of multidimensional approach was explicitly adopted. A new code of ethics was introduced. Independent human rights expert advisors to 60

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Crelinsten, “The World of Torture,” 303. Similarly, Chan argues that attempts to alter policing practices must entail not only changes in the structure of accountability and to cultural orthodoxies within police, but must also attend to the wider field. Chan, “Backstage Punishment,” 103. Chan, Changing Police Culture: Policing in a Multicultural Society, Cambridge: Cambridge University Press, 1997, 332–38.

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the force were appointed. Officers were trained and educated in international and domestic human rights, at the same time as mechanisms to promote transparency and democratic accountability vis-a`-vis the local community were established through District Policing Partnerships (DPPs). Human rights compliance was monitored and routine progress reports issued. Regular community-based meetings were put in place. An affirmative action recruitment policy was introduced with a view to achieving equality between the Catholic and Protestant communities in the force. At the same time, it was recognized that shifting external processes and formal rules was not enough, and that the core identity or paradigmatic dimension of the organization needed to be transformed. Ensuring that the symbols of the organization were egalitarian was one means of getting at this paradigmatic dimension. For example, it changed its name, uniform, flag, insignia, and pledge. Another reform was to shift the identity of the personnel themselves, both demographically, through broadening recruitment, and symbolically, by forming working relationships between police and human rights communities, with a view to diffusing the boundaries and thus the sense of “us and them.” 5 EFFECTIVE NORMATIVE AND BEHAVIORAL CHANGE

In explaining a situational approach to institutional violence, and advocating its adoption as the basis for developing prevention strategies, one of the difficulties that I have faced is finding a way to argue that environmental factors are decisive in shaping behavioral outcomes without implying that individuals (acting alone or in concert) lack agency or responsibility, or turning them into dupes of a systemic process. I have discussed this problem already at several points in this book, for the most part to try to distinguish the argument I am making – that attention to situation can assist in prevention – from the normative or constitutive reasons that still render it critical to hold individuals responsible for their wrongdoing. Here I wish to return to this tension in a slightly different way. As the previous section surveying what we know about effective organizational change has made abundantly clear, even if one holds that situational factors shape what human individuals value and what they do, it is still up to human individuals to bring about changes to situational factors. This is true in the obvious sense that change is not self-executing, but needs to be planned, implemented, and sustained by human beings. It is also true in the more complex sense that changes to organizational processes and structures imply changes to organizational cultures, and thus engage with people’s identities and how they make meaning of the world. Thus, although I have staunchly

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rejected the idea that one can bring about changes in compliance with human rights by simply changing individuals’ attitudes or values, the converse does not apply. Changing attitudes and values will be necessary if changes to situations are to be effected and sustained. We might here expand Schein’s comment that “leaders create cultures, but cultures, in turn, create their next generation of leaders”62 to say that people create situations and situations create people. As subjects who have normative orientations, values, preferences, emotions, and goals, we cannot remove individuals from the equation of change. As I discussed in Chapter 2, however, the approaches to attitudinal, value, and behavioral change that one sees within the field of human rights have generally been thin at best. Despite their strong rhetorical affirmation of the importance of changing attitudes, values, and skills, as well as knowledge, very little that follows in the substantive content or process of human rights training attends to these noncognitive dimensions, other than as by-products of changes in knowledge. In the cognate field of public health, by contrast, a great deal of thought and effort has gone into working out how to change people’s normatively problematic values, attitudes, and behaviors. As part of our research, we felt that it was important to attend to this literature, and in this section, I present some of the ideas and resources that we found to be most relevant for designing a prevention intervention. Before even getting to specific findings about attitudinal and behavioral change, a number of important lessons can be drawn from this field concerning what makes prevention effective. In contrast to the human rights field, where attention to evaluation has come relatively late and evaluation processes remain limited and contested,63 this field has benefited from extensive and methodologically rigorous evaluations and metaevaluations examining what works and why.64 Several key principles emerging from this literature informed our overall approach to research and the development of the project. The first, best considered an umbrella or framing principle, is that prevention programs need to be developed on the basis of empirically grounded and explicitly articulated theoretical 62 63

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Schein, Organizational Culture and Leadership, 313. Some of these methodological dilemmas in human rights evaluation are discussed in HafnerBurton and Ron, Seeing Double. See also Carr Center, Measurement and Human Rights. Meta-evaluations collate the results of evaluations across a large number of studies to generate common findings about what makes a program more likely to be effective. The most important meta-evaluations are Nation et al., What Works in Prevention, and Casey and Lindhorst, “Toward a Multi-Level, Ecological Approach.” A number of the principles that emerge in these meta-evaluations, such as the importance of building evaluations into the project design and of properly trained staff, are fairly generic and so are not included in this discussion.

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frameworks.65 The influence of this principle in our work is evident in the importance that we placed on developing, clearly articulating, and crafting our intervention around an empirically grounded ToC, which explained the etiology of torture and provided a robust theory of how to alter key causal factors. The evaluative research also points to the importance of prevention interventions being socially and culturally contextualized, and accordingly informed by in situ research at the intervention site.66 This finding is consistent with the body of critical literature discussed in Chapter 3 that identified the failure to attend to context as one of the principal weaknesses of many existing prevention approaches, particularly those sponsored by international organizations.67 A distinction drawn in the health communications literature between cultural sensitivity approaches and culture-centered approaches, or between surface-structure and deep-structure modifications, is instructive for what comprehensive attention to context would actually involve, and how far short of this principle much of what passes for cultural adaptation in the human rights training world actually falls.68 Whereas cultural sensitivity approaches still work according to an outside-in logic, where experts tailor program contents and style to the cultural characteristics of the group, culturecentered approaches require that program development move from the inside out, so that foundational frameworks and concepts are built up from the cultural assumptions and experiences of the group.69 Thus, in place of adding local examples or translating into local languages, fulfilling this criterion requires developing programs that are responsive to the realities, understandings, prior experiences, aspirations, resistances, intragroup conflicts, and material circumstances of the group concerned. Given that the starting point of any torture prevention project entails an uncompromising commitment to universal standards and assumptions about 65

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As well as appearing in the studies cited, an analysis of international best practice in prevention that formed the guiding principles for sexual assault prevention in Australia led to the inclusion of (1) the use of coherent conceptual approaches to program design, and (2) demonstrable use of a ToC as two of the six principles. See Moira Carmody et al., “Framing Best Practice: National Standards for the Primary Prevention of Sexual Assault through Education,” (Sydney: University of Western Sydney, 2009). Nation et al. refer to this as sociocultural relevance, noting that “the concept of relevance spanned a variety of dimensions, including local community norms and cultural beliefs and practices.” Nation et al., What Works in Prevention, 453. See, for example, Jefferson and Jensen, State Violence and Human Rights. Nation et al. use the surface- and deep-structure distinction. Nation et al., What Works in Prevention, 453. Mohan J Dutta, “Communicating about Culture and Health: Theorizing Culture-Centered and Cultural Sensitivity Approaches,” Communication Theory 17, no. 3 (2007).

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equality and personhood, commitments and assumptions that may be very different to the fundamental normative understanding of the target group, taking this lesson seriously presents human rights practitioners with a serious challenge. As will become evident in the next chapter, it is one that we confronted with significant difficulty. A third principle is comprehensiveness, which here refers to the importance of attending to a range of factors relevant to the problem, as well as to programs being sufficiently sustained, or what is referred to (consistent with the health origins) as a sufficient “dosage.” This principle is consistent with the multidimensional causal map that emerged in our research as well as with the ecological framework, which emphasizes the interdependence of causal factors and the weakness of single-level approaches. At the same time, as I discussed earlier in this chapter, and will come back to in Chapter 7, practical considerations such as reach, access, and resource constraints often undermine the actual feasibility of implementing what would constitute anything approaching a truly comprehensive program, understood as one that addressed the full range of relevant factors over a sufficiently extended period of time. A fourth and perhaps self-evident principle, but one that nevertheless merits inclusion in this list, is that to be successful, prevention programs need to have political support.70 I say self-evident because in the case of torture prevention, which directly involves state practice and state agents, the state is not an auxiliary actor, but in a certain sense, the target. Nevertheless, the state is not a monolithic actor, and in our case, the state institution of a security force is embedded in other state institutions. In this regard, it remains true that without support from other state institutions and agents, programs are unlikely to have any sustained effect. I turn now to the substantive work on attitudinal and behavioral change developed in the field of public health and some of the sociopsychological theories that underpin this work. Given the abundance of different theories and models of individual change, I will limit this discussion to a few examples that we saw as most relevant to our context. First is the social learning model derived from Bandura’s work on the social constitution of values and behaviors, already discussed in Chapter 3. Consistent with the systemic or ecological approach, this model works with the interplay of personal factors, the social environment, and behavior. More specifically, it interrogates the mental

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This principle emerged from assessments of social marketing strategies. See Donovan and Vlais, VicHealth Review.

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processes that a person adopts to make sense of his or her social environment, and how this leads to his or her behaving in particular ways.71 According to the social learning model, an individual’s mental processes are influenced by how she processes or interprets the images and words around her, translating them into her own attitudes and behavior. The consequences of her subsequent behaviors, including the types of responses that others have to what she does, either reinforce those behaviors or result in her trying out different ones. Correlatively, an individual’s behaviors are reinforced or reshaped according to her observations of how others are behaving and the consequences of or responses to their behaviors. Importantly, the meaning of those consequences and responses cannot be objectively assessed as positive or negative, but will depend on how the individuals in question make sense of them, an interpretive process that is itself shaped by their social environment and the meanings circulating in their world. For example, whereas punishment might “objectively” be judged as negative, within the field of meaning that a young person occupies, getting into trouble with the law or finding oneself admonished by official authority figures may be a mark of kudos, or more formally, constitute a form of symbolic capital.72 Recognizing the mutability and context-dependence of what counts as symbolic capital is, as Chan observed, critical to understanding how police cultures operate.73 As per the troubling title of Rejali’s article, torture can be seen to “make the man.”74 Although developed in a very different disciplinary framework, one can discern strong resonances with Bourdieu’s theory of the way in which fields are constituted through the relations between different positions “anchored in different forms of power (or capital).”75 How individuals behave within the specified field can be understood, in part, by recognizing that they are competing for power or prestige, but they are always doing so according to the stakes of what counts and how – within that field – one obtains them. 71

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Brad Perry, “Working from a Deliberate Basis: Theory and Primary Sexual Violence/ Interpersonal Violence Prevention,” Moving Upstream: Virginia’s Newsletter for the Primary Prevention of Sexual Violence 5, no. 1 (2009). Bourdieu defines symbolic capital as “reputation, opinion and representation.” Pierre Bourdieu, In Other Words: Essays Towards a Reflexive Sociology, translated by Matthew Adamson (Stanford, CA: Stanford University Press, 1990), 93. Janet BL Chan, Chris Devery, and Sally Doran, Fair Cop: Learning the Art of Policing (Toronto: University of Toronto Press, 2003), 36–38. Rejali, “Torture Makes the Man.” Loı¨c JD Wacquant, “Towards a Social Praxeology: The Structure and Logic of Bourdieu’s Sociology,” in An Invitation to Reflexive Sociology, edited by Pierre Bourdieu and Loı¨c JD Wacquant (Chicago: University of Chicago Press, 1992), 1–6.

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Changing what counts is thus going to be key to changing how individuals are likely to act; but definitions of value circulate at the level of the collective or the organization, and are constituted or prefigured both through formal or institutional processes (rewards and punishments) and informal or cultural meanings and practices. A second model that has received considerable attention in the public health field, and that can assist in thinking through the components of change processes, is the “information, motivation, behavior” (IMB) model, first developed to understand and alter HIV-related behaviors.76 This model builds three dimensions into the change process: information, motivation, and behavioral skills. The first dimension, information, will influence behavior insofar as it is “directly relevant,” but even then constitutes only “an initial prerequisite for enacting a . . . behavior.”77 It will be most impactful where it can easily be translated into practical and understandable actions. Presenting abstract principles and information about laws or norms is, in other words, likely to have little effect on behavior. By contrast, material that directly engages the tasks people will need to undertake and the real challenges they are likely to face, and that assists them in working out how to do so in new ways, as well as developing the required skills, is more likely to alter their future choices and behaviors. This research thus supports the efficacy of training approaches that seek to develop positive alternatives to torture, for example in the form of ethical interviewing skills. At the same time, this model points to the relevance of information we might think of as lying at the opposite end of the spectrum to the practical and operationalizable, that is, the background myths that implicitly underpin decisions and judgments. The second dimension – motivation – will, on this model, be influenced by a person’s attitude to the behavior we are seeking to prevent or change, the existing norms concerning the behavior, the perceived vulnerability of the norms surrounding the behavior, and the perceived costs and benefits of stopping the practice. Underpinning this understanding of motivation is the Fishbein–Ajzen theory, which asserts that motivation is underpinned by several factors.78 First is the subject’s attitude to performing the act in question, which in turn is influenced by his or her beliefs about the consequences of performing the action, and his or her evaluation of those 76

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Jeffrey D Fisher and William A Fisher, “Changing Aids-Risk Behavior,” Psychological Bulletin 111, no. 3 (1992). Stephen J Misovich et al., “Predicting Breast Self-Examination: A Test of the Information–Motivation–Behavioral Skills Model,” Journal of Applied Social Psychology 33, no. 4 (2003): 777. Fishbein and Ajzen, Belief, Attitude, Intention and Behavior.

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consequences. Second, motivation is underpinned by subjective norms or a person’s evaluation of what others whom he or she considers significant believe should be done. In other words, an individual’s own motivation to adopt or change a certain behavior is in part determined by what he or she believes such “referents” or figures of influence believe and value as well as by how powerful the forces of compliance are that bind him or her to these others’ beliefs and values. Importantly, the evaluations at issue here should not be understood in purely intellectualist or cognitive terms, but include a strong emotional dimension. In other words, how people feel about certain actions and how they feel others feel about them come in alongside what they think of them, together binding them to certain patterns of behavior or fostering behavioral change. The third dimension is behavioral skills, and within this model, this includes both objective skills (for example, knowing how to obtain information through nonviolent methods) and the individual’s confidence in using these skills, known here as self-efficacy. Combining this model with Bandura’s social learning model, we might conclude that a person will be more likely to engage in positive behavior change when she sees positive behaviors modelled, practiced, and socially rewarded, is able to increase her own capability to implement new skills, is able to gain positive attitudes about implementing the skills associated with the new behavioral patterns (self-efficacy), and where she experiences support from her social environment in order to use her new skills. Public health research and practice also provide us with useful insights into addressing some of the organizational processes and dynamics that we identified in Chapters 3 and 4 as normalizing the use of torture and legitimating violence. Whereas the focus of this earlier analysis was on how dynamics such as obedience and compliance contribute to the constitution of cultures of violence, a number of approaches have been developed that seek to deploy these same dynamics to transform those pathological behavioral norms.79 More specifically, a range of interventions has been developed that seek to alter individuals’ behaviors by influencing the people around them. The first type of approach, known as “bystander interventions,” seeks to mobilize community members, peers, or co-workers who might be witnesses

79

See Sue Dyson and Michael Flood, Building Cultures of Respect and Non-Violence: A Review of Literature Concerning Adult Learning and Violence Prevention Programs with Men (Melbourne: La Trobe University, 2008).

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to violations to positively intervene to prevent or condemn them.80 They may do so directly by trying to stop someone from carrying out the action in question, or they may act more indirectly by challenging the attitudes and values that sustain the problematic behaviors. Going back to my earlier discussion about the dimensions of culture, this might take the form of refusing to join in racist or sexist banter or challenging a friend or peer when they are recounting “war stories” of, say, violence or sexual exploitation. Research in the field of sexual violence prevention indicates that prosocial bystander interventions have been effective in promoting nonviolent forms of masculinity and in engaging members of communities that previously believed that issues such as violence against women were private matters.81 In the context of the use of torture in police or military contexts, where peer influence and the dynamics of compliance act as powerful shaping forces, bystander approaches could certainly have some applicability, but there is reason to proceed with caution in applying them. In particular, refusing to conform with violent behaviors that are normative within the subculture can have extreme negative consequences, and the difficulty individuals face in actually intervening should not be underestimated. A study conducted on a unit in the Israeli army that had perpetrated serious human rights violations during the first intifada, and on how a small minority of its members sought to speak out against abuses, is instructive in a number of ways.82 First, it found that what empowered the people who did speak out was the fact that they had already formed bonds among themselves, and thus had a sense of solidarity in their opposition to the dominant practices. This finding is consistent with some of the research discussed in Chapter 3, indicating that compliance is significantly weakened where people become aware of others who also dissent from the majority. At the same time, the study pointed to the difficulties that dissenters face when they do speak out. In the first instance, when one of those who objected to the violations tried to get his superior (a lieutenant) to intervene, he was told, “You are dirtying C/I-2 [the unit]. This is a big mistake and you can expect to be punished.”83 Only when a visiting general was 80

81

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A Powell, Review of Bystander Approaches in Support of Preventing Violence against Women, (Melbourne: Victorian Health Promotion Foundation [VicHealth], 2011). Victoria L Banyard, Mary M Moynihan, and Elizabethe G Plante, “Sexual Violence Prevention through Bystander Education: An Experimental Evaluation,” Journal of Community Psychology 35, no. 4 (2007); Moira Carmody, Sex and Ethics (Melbourne: Palgrave Macmillan Australia, 2008). Yoel Elizur and Nuphar Yishay-Krien, “Participation in Atrocities among Israeli Soldiers During the First Intifada: A Qualitative Analysis,” Journal of Peace Research 46, no. 2 (2009). Ibid., 259. Note that these words were reported by one of the interview subjects.

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approached by one of the dissenters, and his story corroborated by two others, was action taken, in the form of one of the perpetrators being court-martialed. Within the unit itself, the action of the dissenters received some support, but most saw what they did as exposing dirty laundry, and after two of those who had spoken out were sent away for further training, the remaining one was brutally ostracized. His recollection of what happened is revealing: I didn’t have the sense to understand that I am stuck with these people and I had better fit in. That is, to bend down and certainly not to stand out, looking back; if I would face the situation today, my behavior would be different. I was cast out . . . It’s difficult to describe . . . I told almost nobody about it . . . It was like a bad movie; as if a whole company wants to break your bones.84

Moreover, in the short term, none of the interventions that one might anticipate would bring about change – neither the court-martialing and associated condemnation from a senior leader nor the increased monitoring had any impact. Indeed, the soldiers simply learned to better conceal their abuses, an unintended consequence that Rejali argues increased monitoring can have.85 It was only when the two original dissenters returned to the unit, now in senior positions, that more systematic change could be brought about. At this point, they were able to closely model a different relationship with human rights, intimately monitor the behavior of personnel, and put in place new processes. The study is illustrative of a number of the dynamics I have been discussing, but in this context, I want to draw attention to what it says about bystander interventions. Specifically, they are unlikely to be effective (and may be unsafe) unless they are combined with the type of authority that can provide sufficient counterweight to the existing dynamics of compliance. Indeed, if one moves beyond this particular study to consider what has happened to soldiers in the IDF who have spoken out about atrocities, one sees this dynamic being played out at a macro level. The organization Breaking the Silence, which gives voice to the experiences of members and former members of the IDF who have taken part in or witnessed atrocities and wish to speak out, has become the target of a most vicious attack from Israeli political leaders, who have systematically used their platform to seek to delegitimize them.86 Nevertheless, when appropriately backed, the informal normative condemnation that a bystander intervention effects and its potential influence on individuals’ own norms and behaviors can localize the broader and more 84 85 86

Ibid. Rejali, Torture and Democracy. David Shulman, “Israel: The Broken Silence,” New York Review of Books, 63, no. 6 (2016).

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formal condemnation that may, in its remoteness and formality, have little impact on individuals’ beliefs about what is right, or their actual behaviors. Indeed, the unique capacity of insiders to speak authoritatively and in a manner that can effect change helps explain the viciousness with which members of the Israeli government have attacked Breaking the Silence and attempted to curb its work. This is certainly consistent with the research discussed earlier about the influence of actual referents, as distinct from generalized norms. The centrality of referents points to a second type of approach to changing individuals’ behaviors by influencing those around them – the social influence model. This approach works by shifting the “normative attitudes and opinions of the peer and reference groups that people use to guide their decisions and behaviors.”87 To do this, the first step is to identify who are the relevant referents (i.e. peers or figures of influence) and to work with them both on their attitudes and behaviors and on how they communicate with those they might influence. An illustrative application of the social influence model is the “community popular opinion leader” approach to HIV prevention. In one project, influential community figures at the local level were identified using ethnographic methods and targeted for intensive education with a view to influencing the views of others.88 Critical to this intervention was the work of accurately identifying who the figures of influence were and then concentrating on working with them as seeds for broader change. In highly hierarchical organizations like the security forces, one might assume that people in official positions of leadership or authority would be the best targets in this type of approach, insofar as their formal position would seem to invest them with influence. At the same time, however, particularly in organizations where rigid hierarchy has been the occasion for the abusive treatment of subordinates, such official authority figures may have abdicated their normative authority in all but a formal sense. Influence, understood in the cultural or normative terms relevant to this model, as distinct from formal authority, requires that referent figures be admired as persons and as models to be emulated. Certainly, this type of model of leadership is not unknown in security organizations, and is evident in those who “lead from the front” by demonstrating their preparedness to take the same risks and undertake the same difficult duties as their subordinates, and who demonstrate, through

87 88

Donovan and Vlais, VicHealth Review, 77. NIMH Collaborative HIV/STD Prevention Trial Group, “Methodological Overview of a Five-Country Community-Level HIV/Sexually Transmitted Disease Prevention Trial,” AIDS 21 (2007).

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their behavior, the virtues they espouse. In our research, however, we found many instances where subordinates experienced their leaders as exploitative, as using their leadership positions for personal gain, and as failing to act consistently with the values they officially espoused. In this regard, an intervention seeking to use this model in the security sector should attend not only to the official positions leaders occupy, or the norms they espouse, but also to their styles of leadership. The growing body of research noted earlier indicating that effective leadership requires the ability to establish the connectedness and collaboration required to build ethical and respectful relationships points in a similar direction.89 Indeed, in her research on the transformation of the Public Order Police (POP) unit of the South African police service in Durban, Monique Marks drew this conclusion about the importance of relational forms of leadership. Specifically, she found that while close supervision, or a style of leadership that involves policing the behavior of subordinates, can bring about short-term behavioral change, a deeper and sustained transformation requires the introduction of new styles of leadership and, indeed, the creation of different workplace cultures. Using language strikingly reminiscent of the principles of “working with the grain,” combined with the principles of ethical leadership discussed earlier in this chapter, she writes: The transformation of police organizations is a complicated task. It involves changing the very nature of how work is organized so that there is space both for increased participation and ownership on the part of rank-and-file members, and at the same time, a commitment to vigilant supervision in the field. Both of these are needed for significant change in behavior and in value systems.90

6 DRAWING OUT KEY PRINCIPLES FOR TORTURE PREVENTION

These various literatures on organizational, cultural, and individual attitudinal and behavioral change point practitioners in a number of directions and emphasize different dimensions of the process of transforming structures, processes, and cultures. At the same time, two principles seem to be consistent throughout: that organizational change has to be driven from the inside of the organization, and that both leaders and the rank and file need to be enrolled in change. In this regard, they point toward a relationship between human rights 89

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Sonia Ospina and Erica Foldy, “Building Bridges from the Margins: The Work of Leadership in Social Change Organizations,” The Leadership Quarterly 21, no. 2 (2010). Marks, Transforming the Robocops, 160.

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organizations and security sector organizations that is radically different to the one that characterizes many traditional human rights interventions. There, a frequent starting assumption has been that change will only be effected as a result of external pressure. Indeed, one might say that traditional human rights approaches have taken the impossibility of buy-in as an inevitable fact, even a symptom of the problem, that can only be overcome through force – the force of law, or the force of political authority.91 And yet, as I discussed in Chapter 2, our experience to date points to the limits of the “force of law,” not as ideal theory, but in the field of actual power. Beyond this, the research we discussed in Chapters 3 and 4 points to the stagnating drag that pathological organizational cultures place on efforts to use legal mechanisms to bring about reform. Combined, these suggest the value of exploring approaches that, by definition, require a relationship not based on a contest of power. Or perhaps, more accurately, they require a form of relationship between human rights advocates and security sector organizations not based exclusively on the contest of power, because for security organizations to even come to the table, most likely human rights organizations will need to bring the tools of power to bear in complementary arenas of law and politics. Moreover, even within what I am here describing as an approach that works “with the grain,” part of the work of organizational change requires mobilizing power through altering the processes that create incentives and disincentives for different forms of behavior. And of course, even where there is enough grain to work with, there will always be plenty that is working in the opposite direction. Indeed, the balance between allies and opponents within the organization, their respective stake in facilitating or impeding change, and how adroit an intervention can be at altering the balance between these will be decisive in the outcome of this type of approach. Little doubt many readers will see an approach that even partially suspends questions of power from the business of how to prevent human rights violations as naive, but what occurs as naivety may also be a condition for forging new ways of approaching a trenchant problem.

91

This is not universally the case, as illustrated in the discussion of the modality of nonaccusatory monitors in Chapters 1 and 2.

Vignette 7

The whole idea of “international experts” coming in and working with members of the Nepali and Sri Lankan police and military to stop torture was fraught with so many tensions; but for the most part, we didn’t even name them. Strategic silences were pretty much a condition of our all being there. There were a few occasions, though, when it was possible to be straight about our differences and still stay in the room. At the very first workshop with the Nepalis, one of the police officers came right out with it – no holds barred – and asked us why we were wasting his time; he’d been at plenty of human rights workshops before with people just like us telling him what he ought to be doing, all of which he knew perfectly well. It was a moment for me of realizing that just as human rights people are prone to holding police and military in contempt, sometimes, the judgments being made in the opposite direction are not that different in tone or content. Sure, you can protest that there is nothing symmetrical about the two types of judgments – we are protecting rights that have been universally affirmed and they are abusing them. But from the point of view of the people making the judgments, there are usually a whole lot of points to appeal to by way of bolstering their position. In any case, appeals to what is absolutely right usually don’t make a lot of difference to what can happen in the space between you. It turned out that this particular officer was one of our greatest allies, but looking back over all of our encounters, my guess is that getting to that point required going through some way stations and establishing some ground rules about expertise and authority, and our being willing to shut up. In another workshop in Sri Lanka, when it was becoming inescapably clear that many of the participants really didn’t embrace the idea that they should be respecting and protecting human rights, I asked what they actually thought human rights meant. I didn’t want provisions of law quoted back at me, but to know what human rights actually represented for them. Their answers 278

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included things like a sexual free-for-all and the complete abdication of any moral or social order. I was left a bit dumbfounded, realizing what radically different pages we were on. But then it got more personal – because when we got down to it, what came out was that people like us were superior, patronizing neo-imperialists throwing our weight around, and why were we so concerned about what was going on in countries like theirs anyway? I’m no moral relativist, and I think there are important differences between international human rights and neo-imperialism, but I can also see that from their point of view, those differences may not have been so readily apparent. But then, after the project was over, one of my colleagues told me about a confrontation she had had with another person in the human rights world. He had attacked her (and all of us) for being willing to sit down at the same table as monsters. How could we? When I listened to her recounting what had happened, I felt, not uncharacteristically, split. Defensive of course – we had thought so hard about what we were doing, and we’d struggled with the ethical complexities. But then, I could easily have been the one in his place – I’d occupied pretty much exactly that position, with much less justification, with that young German woman in Melbourne. But the men and women in the room ill fit the role of monsters, and I’m fairly sure that the role of savior is not very useful. And although the figure of the monster might be good for inspiring protest and resistance (and I’ve no doubt that’s a sine qua non of change), I’m not convinced it helps when it comes to institutional transformation.

7 The Promises and Hazards of Practice

1 REBUILDING THE SHIP IN HOSTILE SEAS

In recent years, the phrase “rebuilding the ship at sea” has come to serve as a figure of speech suggestive of the impossibility of action ex nihilo, or, in more political terms, of effecting reform unfettered by history as it is sedimented in the present.1 Less well known is that the phrase first appeared in an essay written in 1921 by the social scientist and philosopher of science Otto Neurath.2 The broader polemical point of the essay was to disparage the notion that it is possible to clarify a concept in its pure form, abstracted from a network of concepts and a worldview; but Neurath actually opens the essay by pointing out the far greater impossibility of abstracting action from the capriciousness and complexity of the world of other actions within which it is bound to unfold. He merits quoting at some length: The wish to found action on perfect insight means to nip it in the bud. Politics are action, always built on inadequate survey. But a worldview too is action; embracing the manifold universe is an anticipation of unpredictable efforts. In the end all of our thinking depends on such inadequacies. We must

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For example, this phrase was used as the subtitle for an important book on bringing about institutional reform after political transitions; Jon Elster, Claus Offe, and Ulrich K Preuss, Institutional Design in Post-Communist Societies: Rebuilding the Ship at Sea (Cambridge: Cambridge University Press, 1998). The larger section reads, “We are like sailors who on the open sea must reconstruct their ship but are never able to start afresh from the bottom. Where a beam is taken away a new one must at once be put there, and for this the rest of the ship is used as support. In this way, by using the old beams and driftwood the ship can be shaped entirely anew, but only by gradual reconstruction.” Otto Neurath, “Anti-Spengler” (first published 1921), in Empiricism and Sociology, edited by Marie Neurath and Robert Cohen (Dordrecht, Boston, MA: D Reidel Publishing Co., [1973), 199.

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advance, even without clarity. The only question is whether we are aware of it or not. Our pseudo-rationalists dare not face this fact. Frivolity! they cry when it is found that even with the most well developed insight more than one way remains open for important decisions and that casting lots can thus become meaningful. They will not admit, precisely when some great task is to be undertaken, that insight becomes awareness of its own limits.3

Hannah Arendt similarly insisted that one of the characteristics of action is that its effects are never within the control of the actor, who inserts themselves into a world where others will inescapably take the original action in directions and give it meanings that could not have been anticipated. As she puts it, “Because the actor always moves among and in relation to other acting beings, he is never merely a ‘doer’ but always at the same time a sufferer. To do and to suffer are like opposite sides of the same coin, and the story that an act starts is composed in its consequent deeds and sufferings.”4 The impossibility of controlling action once it enters the world was certainly our experience with the Torture Prevention Project, although it might be argued that some of the directions in which the “other acting beings” took the actions were far from unpredictable. Indeed, as I already anticipated in the previous chapter, there is a fundamental tension between the principle that bringing about deep and sustained organizational transformation requires leadership and broad buy-in from the inside, which in this case entailed security sector personnel having significant control over the process, and the fact that these same personnel are thoroughly interpolated into the very processes, structures, and cultures that need to be changed. Further, the difficulty is not limited to the fact that the habitus of security sector personnel and the processes, structures, and cultures that sustain human rights violations are mutually reinforcing. Both are held in place by durable threads that reach over and across from other spheres of the overall ecology – politics, the criminal justice and legal system, and the broader society. In simple terms, the situational processes, and with them the attitudes and beliefs that underpin torture in security sector organizations, are authorized, facilitated, legitimated, and incentivized in systems and logics far beyond those organizations themselves. This multisystemic production of torture is precisely what I have been pointing to throughout this book, but it is at the point of intervention that it 3 4

Ibid., 158–59. Hannah Arendt, The Human Condition (Chicago and London: University of Chicago Press, 1958), 190.

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really rubs. So long as we remain in the realm of theory, we retain the luxury of being able to map complex nonlinear interactions, conceptualize multidimensional causal relationships, and explain the co-constitutional association between meaning making and practice. As soon as we enter the realm of intervention, we find ourselves confined to a small territory within that map, capable of pulling partial levers rather than catalyzing cascading effects, and confined to working within spaces already saturated with meanings and entrenched practices. It is perhaps in the face of how humbling and dispiriting the finitude of intervention is that so many scholars eschew it. As I also learned, it is far easier to provide a critical analysis of an action taken than it is to propose and try out an alternative. For all of its apparent bravery, critique is relatively safe. Picking up the analysis of the Torture Prevention Project from the previous chapter, this chapter describes the “partial levers” that we pulled, explains why we did so, and reflects on what occurred. Beyond simply describing the intervention, I seek to analyze how it unfolded between the two parallel tracks that shaped what we did and what transpired. On the one side were our ideas about how to effectively bring about changes that would contribute to the prevention of torture, ideas that emerged from the research and principles set out in this book so far. On the other were the constraints within which, and the impediments before which, we were working. The tension between these two tracks represents the disparity between the logic of design and the logic of practice.5 The constraints that constitute the logic of practice were of various kinds. Some arose because of the way we had set up the project before we conducted the research and before we had acquired the rich knowledge required to understand where and how we needed to move. Progressing the plan envisaged in the original proposal necessarily entailed establishing particular processes, forging particular relationships (and not others), making certain pre-commitments (albeit often implicitly), and setting up certain expectations among the stakeholders. But when the research showed that we needed to move in different directions, or when circumstances shifted, some of these prefigurations came to impede our ability to spontaneously or fluidly change tracks and take up directions that the research indicated would be most productive. Another way of saying this is that we did not anticipate what we

5

I say that the tension is “represented” by this disparity and not that it is “constituted” by it, because it is also partially constituted by flaws in the design itself.

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were going to find out, and thus did not establish the infrastructure for moving in novel directions.6 A second class of impediments, as I have noted, followed from the reality of working “on the inside” or in a cooperative relationship with the security organizations that we were seeking to affect. Unsurprisingly, as we moved from the general to the specific, and from rhetorical agreements to the prospect of concrete change or action, it became apparent that relationships that had enjoyed the appearance of cooperation were beset with conflicting objectives. Unsurprisingly, the conflict was not simply (and sometimes not even) between the project and security organizations or personnel, but was rather with political-level actors who had oversight over those organizations. Moreover, for the most part, the conflict did not play out in the form of explicit blocking or opposition, but took the subtler forms of delay, deflection, disruption, misapprehension, and co-optation. The third class of constraints were the structural ones that I referred to earlier as “where it really rubs”. Effective prevention on a multisystemic situational model required that the action operate across multiple levels, but we were limited to acting in a highly limited space within the overall map, for a short time, with limited access and with limited resources. In this sense, the very idea of a specific project effectively bringing about change in a complex multisystemic ecology is somewhat oxymoronic. And yet, precisely because the map comprises complex causal vectors, it is possible that even limited actions will give rise to reverberations and have effects beyond what is readily apparent. As Arendt wrote, “action always acts upon beings who are capable of their own action” and so reaction, “apart from being a response is always a new action that strikes out on its own and affects others.”7 It is impossible to know what might become of the seeds laid by limited actions, especially as they then move into the sphere where members of the team and security personnel pick up the baton of action, conjoining it with their own ideas and aspirations to prevent torture. Section 2 of this chapter sets out the intervention design and explains how we came up with it, keeping in mind the two tracks mentioned earlier in this section – the ideals of the design that emerged from our research and the realities of practice. In Section 3, I then describe and critically reflect upon the five stages of the actual implementation. The description of “what happened”

6

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Again, one might object that at the point of the original design we should have known certain things that would have had us anticipate what transpired. Perhaps so, but much of this knowledge was only produced as a result of the project, which was explicitly experimental. Arendt, The Human Condition, 190.

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allows us to develop a set of grounded reflections on the movement from an ecological and situational model of the etiology of torture to the far more capricious space of the practice of prevention. It also, as any rigorous evaluation should do, allows us to spiral back to the point of (re)design. 2 FROM RESEARCH TO DESIGN

(i) The Path between the Ideals of Design and the Realities of Practice When the different components of the research had been completed, they were shared across the whole team and also, through the mechanism of the reference groups, with the nominated representatives of the security sector organizations we were working with. At this point, the entire team, including the disciplinary specialists, the in-country researchers, and the project managers, met to discuss the findings and begin the process of designing an intervention. Translating this broad body of research into an actionable plan that would in some way realize our ultimate objective of contributing to the prevention of torture presented one of the most significant challenges of the project. Before describing the intervention design we arrived at and implemented, I want to say a few words about the original plan or blueprint that we had set out before even commencing the research. Having this type of plan for how the entire project would play out was, as I explained in the previous chapter, both a condition of obtaining funding to carry out the project, and nowadays fairly typical of how large projects are structured. While it had always been envisaged that the plan would vary in response to the findings, and it was officially acknowledged (including by the funder) that it ought to be responsive to what was happening on the ground, in reality, just having a plan inevitably created a particular type of path dependency, and there were limits to what could be changed. While the particular path dependencies created in this project were unique to it, the problem is a more generic one, and bound to fetter any large project. From the outset, we had determined that we were going to work at the level of security sector organizations, and that we were going to do so in a way that addressed the situational factors that shape personnel’s beliefs, attitudes, and behaviors in relation to the use of torture. More specifically, we established that we would design an intervention that would seek to change the culture of security sector organizations in such a way as to affect the use of torture. At this point zero, because we were trying to combine elements that had not previously been combined (systemic or situational

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approaches, cultural and institutional transformation, security sector organizations, and torture prevention) and to work in a novel way, we did not have a clear picture about what the final intervention would look like. Nor did we wish to. The whole point was for the research to generate new thinking. Keeping the space completely undefined, however, was not an option, either for the funder, who needed some sense of what we might do, or for the security sector organizations whose agreement was required to get the project off the ground, or for the team, who needed some structure to guide us. Some type of placeholder was required to describe what we planned to do, and the one that we adopted was “modified training.” Human rights training, we knew, was the most common means for changing organizational practices and cultures in the security sector in the field of human rights, so it afforded a familiar idea capable of providing people with a bridge into what was unfamiliar and novel. The difference, we insisted, was that the “modified training” we envisaged would not be oriented to changing individuals’ knowledge or values, but rather crafted in such a way as to encourage personnel to address situational factors. Once we had completed the research, much had shifted and even these “rough stakes in the ground” appeared in a very different light. First, as I have repeatedly discussed, the degree to which the structures, processes, and cultures of security sector organizations were embedded in and shaped by other systems in the overall ecology became starkly clear. This was particularly true in Sri Lanka where security sector organizations were obviously and absolutely subordinate to political-level actors, specifically the Ministry of Defense, and even more pointedly to Gotabaya Rajapaksa, the Secretary of Defense and brother of the president. Their subordination was not only something that came through in our research; it was repeatedly exhibited in the way that the project played out. For example, although an agreement concerning research access had been officially agreed upon before we even began the project, when it came to planning research with police and military organisations, what we confronted was a type of paralysis. Even high-level representatives within those organizations were unwilling to grant permission without the express agreement of political authorities, and even asking for this was evidently a fraught prospect. In Sri Lanka most pointedly, it was evident that we faced a “constraint of scope”; an intervention that worked uniquely at the organizational level would have very limited purchase. This was far less of a concern in Nepal, where the police and APF enjoyed a significant level of autonomy. Indeed, if anything, their ability to make their own

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decisions was augmented by the fragmented and dysfunctional character of Nepali politics.8 The second shift concerned our understanding of the role that training might play in the intervention. While from the outset we had envisaged training as a loose frame, as we learned more about human rights training in security sector settings, particularly in our target countries, it became evident that no matter how modified, training would not afford a suitable vehicle for addressing situational factors. At best, one could talk about the impact of situational factors within the training setting, but talking about a problem was not going to change it. What was required was an intervention that actually went to work on those situational factors – on the structures, processes, and cultures in security organizations that created risks for the use of torture by incentivizing, normalizing, legitimizing, authorizing, permitting, motivating, and creating opportunities for it to occur. One way of thinking about these two shifts is to map them across the two parts of a ToC, where the first shift corresponds to the first part of the ToC, which diagnoses the cause of the problem, and the second shift to the second part, which prescribes an action to shift those causes. Thus, our research had clearly shown that torture was the outcome of processes, structures, and cultural practices operating across the different levels of the multisystemic ecology within which it occurs. Some of those processes, structures, and cultural practices inhered at the level of security organizations, but many did not, and even those that did were connected with causal vectors and conditions in systems beyond that organizational setting. Second, with respect to the questions of how to bring about change to the causal factors operating within security sector organizations, our research had indicated that deep and sustainable organizational change requires a concerted organizational strategy that has the support of leadership, that enrolls the rank-and-file, that is multidimensional, and that is rooted in changes to the regular practices of the organization. This went far beyond training, which tends to operate at the periphery of the organization and its dynamics. The intervention design thus needed to tread a path between the ToC that had flowed from the research, and the constraints of the reality of practice. 8

To be clear, the constraint of scope did not only concern the need to take political-level action. For example, our research had also suggested that in order to change the cultures and patterned behaviors in the security sector, one also had to work on shifting social attitudes and norms more broadly. After all, as some of our interviewees and other observers pointed out, it is rather unrealistic to expect law enforcement or security personnel to reject the use of violence as a form of discipline when they belong to a broader social context where the appropriateness if not desirability of disciplinary violence is broadly affirmed.

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In the first instance, as just noted, the theory emerging from the research indicated (in very general terms) that the situational causes or conditions that needed to be addressed to prevent torture were located at various levels of the overall ecology (politics, the criminal justice system, society, security sector organizations, and so on). With this multisystemic diagnosis in hand, the ideal design would prescribe interventions in those parts of the overall ecology that have the greatest influence or effect.9 In other words, if the political system, the criminal justice system, and the legal system all shape the behavior of security sector personnel, but ultimately, both law and security sector organizations are subordinate to the political sphere, an effective intervention cannot leave out action at the political level. In the case of our project, the reality of practice was that we had access, and we had built the infrastructure and relationships to intervene at the level of security sector organizations, and not at other levels. As such, the situational factors that we needed to address in our intervention were those that operated at this level. As I said, in Sri Lanka, the disjuncture between the ideal of the design and the reality of practice proved to be a substantial one. One possible response to this observation would be to aver that our mistake was to preempt in any way the locus or shape of the intervention: before you make any decisions about the course of action, and indeed before you build any of the infrastructure needed to support action (building relationships, hiring staff with particular expertise, and so on), first conduct research that will give you a sound read on exactly what the intervention ought to be. This is fair criticism. The problem is that it assumes the existence of conditions that are unlikely to hold, for example that you will be given access to do the research you need to do even without the promise of action, or that you can first obtain the resources to conduct broad-ranging research, then further resources to build the relationships, and then more still to pilot the intervention. Even more seriously, the criticism assumes that once you find out where and how you need to intervene, you will be able to do so. In our case, there were specific reasons that we worked exclusively at the level of security sector organizations. This is but exemplary though of the broader truth that within the reality of practice, only certain parts of the overall ecology will ever be accessible to intervention at a particular time and under existing circumstances, and these may not be those prescribed by what the research tells you would be most effective.10 Correlatively, those that 9

10

By “ideal”, I still have in mind a possible world, rather than one in which it would be feasible and possible to intervene everywhere. This may explain why, for example, so many interventions take place at the level of law reform, and more specifically in the arena of international law, where human rights advocates have reasonable access and influence.

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are prescribed may be inaccessible. As a counterpoint to our situation, some of the prevention approaches analyzed in Chapters 1 and 2 were constrained precisely because they sought to bring about change to security organization-level factors but did not work directly at this level. The particular shape of the problem traced in the case of our intervention was thus distinctive, but the inevitability of a disjuncture between the ideal design that will emerge from comprehensive research and the reality of practice is generic. Feasibility, like unpredictability, is intrinsic to the reality of practice. Negotiating this path between what is ideally desirable and what is feasible is one way of characterizing strategic action, and the best or most effective strategic interventions will be ones that recognize that they need to take both into account. On the one hand, this might require activists refraining from taking action in the most easily accessible spheres, and rather investing in building accessibility into spheres that are most germane, but at this point inaccessible. On the other, it suggests that theorists deriding strategic action as “pragmatic” because it does not faithfully hug the curb of the ideal design betrays a failure to appreciate the inescapable realities of practice. Action, once it leaves the realm of theory, can only ever advance between the two. The second shift, between our prefiguring the intervention using the frame of training, and what we learned about the limits of training, also proved to be an impediment. As will become evident, our using the language of training too easily fed into the very expectations, imaginative repertories, and conditions of the security organizations that limit the reach and depth of interventions seeking to bring about systemic reform. That we opened the door to training allowed everyone to go along with what they were willing to do, “keeping up the appearance” of cooperation, while keeping other doors firmly shut.

(ii) Designing for Change Given these realities of practice and scope conditions, the challenge thus became how to meaningfully work at this level of security sector organizations, seeking to address the situational conditions of torture operating within this sphere, and mindful of their being embedded in, and thus shaped by extrasystemic factors. I should be clear here that for all of the qualifications I have made, there were certainly strong indications that situational factors at this level were decisive. This came through both in our research and, as discussed in Chapter 2, in other studies that have affirmed the importance of conditions of detention. Moreover, as I argued in Chapter 2, the opposite belief, that political-level changes will be sufficient to bring about changes in the

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operation of security sector organizations, has also led to some of the standard approaches to torture prevention failing to have an effect on actual practice. The research indicated that to be effective, our intervention would need to involve a strategy that did not simply address generic situational factors, but that got at the specific organizational situational factors that were operating within the target spaces. Our research also told us that affecting this type of organizational transformation would require strong buy-in and leadership from the inside. This latter finding then created the hook for our action and the link into the idea of a modified training. The intervention that we designed can be summarized as follows. A number of “change agents” would be identified in each of the organizations. They should occupy operational leadership positions where they had authority and influence over other personnel, and where they were in a position to bring about operational changes. They would not, however, simply go to work on situational factors that the research team had already identified as conditioning torture, but would themselves be involved in building on the findings to identify the specific processes, structures, or cultural practices within their sphere of operation that contributed to the occurrence of torture, and that they had some access to changing. Having identified the situational factors that needed to be, and could be, changed, the next step would be for them to work with the team to design small-scale projects to address the specific factors that they had identified. The final step would be to implement and then evaluate their pilot projects. It was understood that the projects would be small and local, but the idea was to test a model that combined a focus on situational causal factors with organizational transformation from the inside. Before breaking this design plan down into the stages of its operationalization, two aspects of this general design merit comment: the centrality of change agents within the security sector organizations to the intervention, and the decision to work on factors that they would identify. Each involved tensions both between the logic of the design and the realities of practice, and within the logic of design itself. The design placed selected change agents at the center of all stages of the process: they would work with the support of the team to conduct the research to identify a process, structure, or cultural practice that contributed to the use of torture and that they would target; they would devise the change strategies; and they would lead the pilot projects’ implementation. From the point of view of traditional human rights interventions, where security personnel are the targets of, and not partners in, change, this must seem quite odd. Proceeding in this way was, however, based on research indicating that

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insider–outsider collaboration was a principle of effective and sustainable security sector reform. People in operational leadership positions have an intimate, practical, and lived understanding of the organization, as well as access and authority unavailable to outsiders, empowering them in important ways. At the same time, however, this same insider status means they may very well be invested and tied into the status quo. In this regard, for change agents to be agents of change toward practices and systems adverse to torture and not continuous with those that sustained torture, they needed to be representative of the heterogeneity in the organizational system. The implication was that to realize the best-case scenario, insider change agents had to strike an extremely difficult balance. They had to have the authority of the insider, but the distance or difference of the outsider; or perhaps more accurately, they had to occupy that part of the organization where a habitus of human rights already had a foothold, and be linked in with processes and structurers that already, albeit partially, supported the instantiation of further practices in support of human rights. If they had no reason, no incentive, and no situational support to advocate the eradication of torture, their insider status would only give them better access to co-opt the project. There were also more practical risks involved in this strategy. First, the role that we had envisaged for the change agents required a range of skills and aptitudes which, as people who occupied leadership roles in security sector organizations, there was no reason to think they would necessarily have. Second, and more seriously, we were reliant on the people selected being in positions where they had the power to actually bring about the changes that needed to be made.11 The design also envisaged the change agents working with the team to identify the processes, structures, or cultural practices that they would go to work on, rather than our identifying them and using the change agents as a type of conduit into the organization. This decision was based on several factors. First, it was important for the change agents to have ownership of the process and not feel that they were simply tools. Second, their intimate knowledge and the experience of the organization gave them access to insights that outsiders might lack. Valuing their expertise in their own organizations was not simply strategic. It also marked a recognition of the limits of our own knowledge. Third, their identifying the factors to be targeted provided a way of identifying factors that were within their sphere of influence and that they would be capable of affecting. Again, however, proceeding in this fashion 11

The term “power” is a contested one, but here I use it in the fairly simple sense of being able to bring about effects.

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raised a number of tensions and risks. Continuous with the point made earlier, while their insider status gave them access to identify factors that needed to be changed, it also (potentially) gave them reasons to choose factors that were peripheral or that did not threaten core investments and interests. A further practical problem was that this design asked a great deal of the change agents. We were not only relying on their expertise with respect to their own organizations, but also asking them to assimilate their expertise with the goals of our overall project. That is, for them to identify what we were calling the situational factors that created risks for, or conditioned torture required their being brought on board with the whole conceptual (situational) approach of the project – an approach that we could not be sure would resonate with them or that they would embrace. All of these tensions were to play out in the delivery.

3 THE PROJECT IN ACTION

In what follows, I describe and analyze the project in five stages: the identification of the change agents; introducing the change agents to and enrolling them in the project; identifying the situational factors to be targeted; designing their pilot prevention projects; and implementing and evaluating their pilot projects. The descriptions of each stage are not fully comprehensive, but capture the essential elements and provide sufficient detail for a critical analysis.

(i) Identifying the Change Agents The first stage was to identify the “change agents.” Given how important they were to be to the whole intervention, correctly identifying the positions the selected individuals ought to occupy within the overall field of the organizational space, nominating individuals from those positions, and selecting individuals with the right attributes were all critical.12 No doubt personal aptitudes were important, but without the right authority, access, and organizational resources, their capacity to bring about systemic change would be stymied. Accordingly, the team devised a number of principles for selection.

12

The reference here to positions evokes Bourdieu’s notion that the organization of a field is given by the relative location of positions, which are themselves organized according to their possession of the relevant forms of capital. Positions are thus impersonal, although always filled by particular individuals.

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First, the selected change agents should occupy mid-level leadership positions, where they possessed organizational (formal) authority, but were also in direct operational contact with more junior personnel, as distinct from occupying high-level policy positions remote from operational matters and the men and women of the organization. Second, they should have an intimate knowledge and operational experience of the organization and its personnel. Third, they should have the support of senior and frontline staff. Fourth, they should have evidenced a professional orientation and values consistent with respect for human rights, and correlatively, no history of misconduct. Fifth, they should have displayed a history of leadership and effecting change, and have the capacity to employ motivational techniques such as persuasion, respect, authority, reinforcement, modeling, systemic problem solving, advocacy, and brokerage. Finally, as a negative condition, they should not already be designated as human rights trainers or in human resources positions. This negative condition was stipulated so as to avoid the intervention being assimilated into a human rights training model, a risk that we considered great given that this is the habitual, familiar, and safe approach to organizational and cultural change. Moreover, training and human resources sections of security sector organizations occupy relatively marginal positions within the overall organizational field of power. Of course, the selection of the change agents was not an action over which the team had control. We could put this set of principles to the nominated representatives of the organizations, but they alone had the power to identify and choose. Indeed, acknowledging this fact was not simply a matter of “accepting what we had to,” but was also consistent with our appreciating that ultimately, the ability of these agents of change to take meaningful action would be dependent on their having organizational backing. Accordingly, we asked the four organizations – the police and the APF in Nepal, and the police and military in Sri Lanka – each to nominate twelve change agents, making a total of forty-eight. This request did not simply come out of the blue, as representatives of the organizations had been continuously briefed as the research and planning progressed. When they provided us with lists of the personnel whom they had selected, it became clear that principles of selection other than those we had specified had been at work, although what they were remained a matter of speculation. In Sri Lanka in particular, a majority of the nominated change agents were from training institutes, and more broadly, there was little evidence that the principles we had specified had played any role in the selection process. In Nepal, matters were somewhat better, with a number of the individuals occupying mid-ranked operational leadership positions and having already

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displayed a commitment to human rights. In both countries, at least some of those nominated occupied positions that were completely inappropriate for the type of work we needed them to do. For a number of people in the team, the way that the organizations selected the change agents was evidence of their complete lack of commitment to the project or its objectives, if not of their desire to actively, albeit indirectly, undermine any chances of its actually bringing about organizational change, while keeping up the appearance of cooperation. This may well have been the case, although I suspect inattention worked alongside active subversion to produce similar results. During a conversation that I had after the end of the project with a very senior officer in Sri Lanka who had played an oversight role in the project, he commented that only at the end did he realize what we were trying to do, and he now saw that the people we needed to work with were quite different from those to whom we had been given access. I cannot assess his honesty in making this remark, but it does suggest the possibility of more than one explanation of how the organizations behaved. Nevertheless, the fact that most of the nominated change agents did not occupy the types of positions identified as prerequisites of their effective participation flowed into what transpired at all subsequent stages of the project. This observation should by no means be read as implying that blame for the problems that subsequently arose lay with the change agents themselves, or even with the organizations that chose them. Rather, linking this back with my earlier comment about what constitutes effective strategic action, one could say that the mistake was with a design that failed to adequately anticipate these realities of practice and thus to build in appropriate protections against this type of risk. (ii) Enrolling the Change Agents The second stage of the project was to commence working directly with the identified change agents and orienting them toward the work of the project and their involvement in it. In the first instance, this meant familiarizing them with the overall approach of the project, and exploring with them the challenges that can and do arise in implementing human rights principles and the prohibition of torture in the security sector in general and their organizations in particular. At this early stage of engagement, our objectives were to share our findings with them, acquaint them with the idea that bringing about reform in their organizational settings could prevent torture, and to enroll them into this process. This stage also represented the beginning of the capacity-building work to equip and support them in their role as change agents. Specifically, as the next

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stage involved their being directly involved in the problem identification, we began to introduce a number of techniques and processes that they could adopt to identify the areas within their own context that would form the basis for their prevention projects.13 Importantly, we did not see the capacitybuilding activities as a matter of simply handing over a body of information or equipping them with a bunch of skills and then asking them to work out what they were going to change and to come up with a way of doing it. To approach the task this way would not only have been to skip over and ignore our research findings, but also to fall prey to the problem of habit or path dependency, where people jump into a change strategy modelled on approaches and techniques they have seen before, without sufficient interrogation into whether those techniques are effective in their context (or for that matter effective at all). Rather, we envisaged that the process of their developing and implementing their prevention projects would be a highly systematic one that in some regards tracked our own: identifying a specific process or systemic factor in their operational context that created risks for torture occurring; then identifying how they would work on that problem; and only then actually going to work on it. These were to be staggered over the subsequent stages. Thus, at this second stage, we principally focused on the processes involved in conducting site-based empirical research into the specific factors that underpinned or created risks for torture occurring in their context, informed by broader research findings about the organizational-level factors that cause or sustain torture. When the design met the reality of practice, matters again looked somewhat different. To start with, the change agents turned up knowing absolutely nothing about the project. Clearly, for many of them, participating was yet another form of “capacity development” they had been required to undergo, or perhaps a few days away from the grind of work where they would get to spend time with new or rarely seen colleagues. At worst, it seemed to be viewed by some of them as being forced to participate in a human rights training with a bunch of people, including foreigners, who had no appreciation of the reality of their lives. Certainly, there was significant internal diversity with respect to their views about human rights, torture, and the project, but many had an ambivalent, if not outright negative view of human rights and the 13

I do not describe here the actual content of the workshops or the types of tools that we used. A detailed description can be found in Anna Noonan and Danielle Celermajer, Issues Paper 6: From Structural Analysis to Structural Intervention (Sydney: University of Sydney, 2015). We also developed a practical guide using these resources; Danielle Celermajer and Astrid Birgden, Preventing Human Rights Violations: A How-to Guide to Delivering a Prevention Program (Sydney: University of Sydney, 2015).

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people connected with them. Associated with this was a more specific and real ambivalence about torture. Certainly, all of them denounced torture as an evil contrary to their own and their organization’s ethics, but when it came to more concrete discussions, it became clear that what they considered torture (spectacular torture like waterboarding) and what we were talking about (mundane and routine violence against detainees) were quite different. Protecting themselves and their organizations against the expectation of accusation or sanction, either they denied that torture of either type occurred at all, or where they acknowledged that it did, many justified it in terms with which we were familiar. Often, they insisted that torture was a historical problem that had all but been dealt with. That many were ambivalent about the importance of their organizations conforming with human rights standards was not necessarily a fatal problem. Indeed, that we were now working up close with members of the organizations where we could so intensely examine these differences could have been, and in some cases proved to be, an opportunity for deeply engaged and transformative discussions. The problem was that from the point of view of the project, these realities placed us at a starting point other than the one we had been counting on. To carry out the work we had planned for this second stage assumed as a starting point certain basic attitudinal orientations. That is, the change agents needed to be sufficiently detached from, or ambivalent toward, the dynamics supportive of torture to catalyze change. We had anticipated that the human rights team and the change agents would diverge in their worldviews and orientations in a number of ways, but some of the orientations that we had counted on being shared were not shared at all. This resulted in much of this first workshop, and indeed subsequent workshops and interactions, being devoted to fundamental conversations about human rights, torture, our respective identities, contexts, and values, and how the change agents thought and felt about addressing human rights violations in their organizations. One of the significant lessons we drew from these increasingly transparent interactions was how disparagingly people associated with human rights are held by many security personnel, especially where they are internationals who have come in to “bring about reform.” Beyond the obvious structural differences that set the groups apart, there can be no denying that the legacies of imperialism, and their reverberations in the way people experience the contemporary international human rights system, were at work here.14 14

Although I do not enter into this aspect of how the project unfolded here, the tensions around intervention from the Global North also played out in the relationship between the international members of the team and the country-based partners.

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(iii) Identifying the Situational Factors The third stage involved the change agents returning to their workplaces and going to work on identifying the specific situational factor or factors that would form the basis for their project. With the support of the local team, it was expected that they would conduct research with their colleagues, peers, and juniors that would inform a “needs” or “situational” analysis of their particular context. Part of the work at this stage was also to inform and enroll other personnel in their workplace, so that they would both be brought on board with the project and have a sense of ownership and investment in it, rather than experiencing it as imposed and thus something to be resisted.15 In concert with the change agents concentrating their attention on their own work environment, it was envisaged that the project team would provide them with resources and tools that would be useful for them, in particular information and examples we had garnered from our background research. For personnel working in contexts where people accused of crimes were investigated, for example, the team would put together information about the factors that increased the risks of torture occurring during interrogations, as well as examples of how others had addressed these factors to prevent torture. As might be anticipated, the impediments at stages one and two bled into stage three. All of the change agents were still at some point of being enrolled into the project, working out what it was about, and deciding how they felt about it. Because the initial workshops at stage one had not been able to achieve the anticipated outcomes, the change agents found themselves unprepared to do the work we had envisaged they would undertake at this stage.16 We sought to bridge this gap by the in-country teams going out and intensively working with each of the change agents, and providing additional support tools, information, and resources. In Nepal, we held an additional workshop specifically focusing on the skills and capacities required to undertake the situational analysis. The difficulties were exacerbated by the fact that their organizations had not given the change agents the relief from their normal work that would have been required for them to dedicate time to the additional work entailed in the 15

16

Here, in the background, were some of the principles of enrolling people within the organization, and in particular the example discussed in Chapter 6 of the human rights reform process developed in a Scottish psychiatric hospital, where all staff and patients identified the problems as part of the process. See Scottish Human Rights Commission, Human Rights in a Health Care Setting. This was partially due to the factors discussed in Section 3(ii), but also because we had sought to squeeze a great deal into the initial workshops, which was itself in part an effect of the overall time frame of the project and our estimation about how much we would or should be able to fit into it.

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project. In most cases, the result was that they could not undertake the situational analysis at all, or that they undertook it in a minimal way, or that it took them far longer than anticipated, even with extensive support from the project team. It is important to emphasize here that the problem was not located in the individual change agents, but in the situation. Without the appropriate supportive structure, the incentives to fully engage, and the organizational commitment behind them, it would be difficult to imagine why or how people already fully embroiled in their jobs and enmeshed in an existing system would extract themselves to take on an entirely new role. Once again, the disjuncture between the ideal of the design and the realities of action diverted the rollout. The more serious problem was that many of them did not occupy formal positions where the types of situational problems that had come through in our research were at all relevant or even present. Not being involved in operations or policy, those in training positions especially did not have access to the type of processes and systems or organizational cultural factors that might have been identified as contributing to the use of torture. In their case, all that was available was to critically examine training resources and methods and to work out their substantive or pedagogic weaknesses, an approach that we had explicitly eschewed. Nor was the problem limited to those in training positions. Others were fairly junior and so were highly constrained in accessing peers or other personnel with whom they would have needed to work. Others worked in technical or administrative areas where there was no contact beyond the personnel of their own organizations. Nevertheless, some of the change agents excelled at this point. Some of our findings strongly resonated with their own experiences, and the opportunity to take an active leadership role in promoting human rights was one that they embraced. Some held workshops with their juniors, conducted surveys and interviews, and analyzed the processes and structures in their workplaces to identify pathological features. That a few undertook this work with such rigor and evident understanding indicated that they were enrolled in and committed to the process, and thus demonstrated the potential to work productively along these insider–outsider axes; but that it was only a few was also indicative of flaws in the process to this point, or perhaps more accurately of the disparity between the aspirations of design and the realities of practice. (iv) Designing Pilot Projects for Reform The fourth stage entailed moving from the problem identification to devising a strategy for addressing it. According to our design, this was to be achieved in

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the first instance in the context of a second, more intensive workshop, to be followed up with subsequent support from the team. At the workshop, it was envisaged that each of the change agents would present and discuss their initial situational analysis, and on that basis, begin to work out a feasible project that they could undertake upon returning to their workplace. By this point, we assumed that they would have identified the relevant causal, conditioning, or risks factors for torture in their particular context and which they were going to address, and they would have focused on which aspect of that problem they were going to work on. As the team would have been working closely with each of the change agents, we also planned to conduct capacitybuilding sessions at this workshop targeted and tailored to the areas where they had indicated they were going to work. These might include, for example, nonviolent investigative/interviewing techniques, changing incentive structures, or methods for altering workplace cultures. Once again, however, in practice, we did not find ourselves in a position to proceed as planned. We still needed, for example, to spend time having foundational conversations about human rights and torture, and working through the change agents’ roles in the project. It was also clear at this point that many of the change agents were simply not positioned to do the type of work we had envisaged, and adjustments needed to be made to work with the group where they were at, and not where we expected them to be. The delay in, or impediments to, carrying out the situational analysis of stage three meant that space needed to be dedicated to drawing on what data they had to identify the problem they would work with, and to begin to consider possible approaches to that problem. Many of them had communicated to the team that they were in need of concrete ideas and skills, and as such, we brought in people to speak about and work with them on specific issues, like human rights-compliant interviewing techniques or working with high levels of stress and disaffection in the workplace. At this point, the organizational positions that many of the change agents occupied also derailed the design. For some of them, torture and the use of violence against people in custody had direct relevance, but for many others, it was a remote issue; remote not in the sense that it did not matter, but it simply did not come up in their workplaces. One, for example, oversaw VIP security, and thus, while police violence in the context of crowd control was a human rights violation that directly pertained to his role, torture per se did not. Others occupied administrative positions. This meant that if they were to develop projects that addressed systemic factors underpinning human rights violations, we had to move laterally to support their working on a different human rights violation that was a problem in or relevant to their immediate environment.

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Changing focus in this way represented an undeniable departure from our focus on torture, but we felt that this was the option that had the greatest integrity within our overall project logic, and was the most consistent with the situational approach. The problem was more serious when it came to those who worked uniquely and narrowly in the training space, which in Sri Lanka was a significant proportion; the scope of their work would be limited to developing more effective human rights training and education. This meant that large swathes of the Sri Lankan workshops were dedicated to developing their skills and knowledge in relation to human rights training, with a focus not only on substance, but also on active and engaged pedagogies that they could use in their project development. This represented a real departure from the model we had developed and took us back to the “safe space” where the focus was knowledge and abstract attitudes, rather than the practices and processes that we had determined shaped these. Nevertheless, the extensive research that we had conducted on human rights training did furnish us with resources that we could use responsively to the realities that arose. Because it points to a more generic risk that projects seeking to bring about real reform face, this drift back to training merits comment. The most obvious problem with working with security organizations, and the one that most human rights advocates will raise, is that they will actively seek to resist reform. There is, though, a secondary and less obvious problem, and this relates to the difficulties of breaking with habit and well-worn paths. I mentioned in Section 2 that the expectations, imaginative repertories, and conditions of security organizations presented certain constraints on what we were able to do. In many respects, human rights training already constitutes the imaginative repertoire of cultural reform in security, and for that matter many other organizations. That the language of training formed part of our initial description of the project thus fostered its being fitted into and then stuck within this existing template. Nor was it only people in the security sector organizations who held tight to the training model. Others involved with the project, including members of the country-based partner organizations, persisted in referring to the project as one that involved training, even when we had long rejected this model. Undoubtedly, this persistence of the training model was in part nourished by the fact that it represents no threat to the modus operandi of the organizations; but the more value-neutral “path dependency of the habitual” also contributed to the difficulty of shifting gears. Nevertheless, for some of the change agents, there was evidence that they took very seriously their role in leading situational change at the organizational level. One mid-ranked leader, who had stood out for his obvious

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skepticism at the beginning of the process, spoke passionately during the second workshop about his insights into how the way things were organized in his police station and how the prevalent policing culture normalized and facilitated the violent treatment of detainees. He evidently felt inspired about being able to alter not only how the police officers under his command operated and treated detainees, but also how police were held by the broader community. In a separate conversation with me and a senior military officer from Australia, he spoke about his negative experience of human rights projects in the past, how abstract the work that they did was, how disconnected they seemed from the realities of policing in Nepal, and that he felt that this was the first time that he was able to make a connection between a human rights intervention and tangible change in his organization. While it would be naive to uncritically take his words at face value, ignore the context of his speaking them, or generalize them beyond the individual, they suggested that we had possibly moved some way in crossing the bridge between identifying pathological processes at the organizational level and working out how these could be altered. This positive indicator, though, points to a less sanguine, but significant implication of what was happening at this point. I noted at the beginning of my description of this fourth stage that the aim had been for the change agents to draw on their situational analyses to design feasible projects that targeted the identified causal or conditioning factor. Feasible in this context meant that the change that their project sought to achieve needed to be one within their reach, or more accurately, that the actions required to bring about the specified change were ones they had the power to bring about. A project that involved bringing about changes that would require the injection of resources beyond their reach, or that entailed organizational reforms that needed to be initiated and effected from higher echelons of the organizations, were not feasible unless they had access to influencing more macro-level reform. At the same time, every project that was proposed needed to be approved by people higher up in the organizational hierarchy. Given the risks involved for change agents, one might conjecture that the need to expose their reform ideas to their superiors had a certain chilling effect, and constrained the depth of change they were willing to propose. The result was that the projects that the change agents ended up developing had a very limited reach, and in a number of respects suffered from some of the weaknesses that our own research had identified in torture prevention strategies. In the most successful cases, the change agents had identified a contributing factor within their operational environment and had pinpointed one of the causes of this factor or problem that they could address. In so focusing in on

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what they could do, however, it turned out to be just a fraction of what would be necessary to bring about the changes capable of preventing torture. This then takes us to the fifth stage of the process, where they were developing their actual projects, which I turn to now.

(v) The Change Agents’ Projects We come now finally to the projects that the change agents designed and tried to implement. Rather than simply describing the projects, or trying to work out what they achieved, for the purposes of this discussion, I want to analyze these projects to try to understand the structural factors that led to their falling short of achieving the type of systemic work on the preconditions of torture that we had envisaged.17 I do so by considering four types of projects. First were projects that did not address situational factors at all, principally because the change agents were not in positions where they had access to systems, processes, or structures. Those in training branches, for example, developed new human rights training curricula, and delivered modified human rights training, drawing on the research that we had done on what makes training more or less effective. They generally sought, for example, to ensure that the training actively connected human rights and anti-torture principles with the actual situations that trainees were likely to face in situ and to engage trainees in terms of their practical skills and capacities. What was situational about their projects was thus confined to their building a recognition of the shaping effect of context on behavior into their training, but the constraints of their offices meant that directly addressing systems was beyond their scope. The second type of project comprised those that did address situational factors underpinning human rights violations, but these were violations other than torture. For example, one officer in charge (OIC) of a police station in Nepal undertook an overhaul of the processes involved when women came to report crimes in general and gender-based violence in particular. Through an analysis of the existing intake, interview, and crime investigation processes, he had tracked the factors that inhibited women from reporting violence they had experienced, or impeded their reports being rigorously and properly investigated, and thus how these processes contributed to the failure on the part of the police to take adequate steps to protect women from ongoing and systemic domestic and sexual violence. In the light of longstanding arguments about 17

For a fuller description of all of the projects, see Danielle Celermajer, Case Studies from Nepal and Sri Lanka: Human Rights Facilitator Projects (Sydney: University of Sydney, 2015).

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the gendered scope of official definitions of torture, and feminist insistence that the state is failing in its obligations vis-a`-vis torture where it fails to take adequate action to prevent and punish so-called “private violence,” it can be argued that this project did address torture.18 Nevertheless, the link with torture as we had understood it – as everyday and normalized violence committed by the police or military – was an indirect one. Another change agent focused on police behavior during political demonstrations, tracking the ways in which their existing processes contributed to the improper use of force during demonstrations or in the context of crowd control, and the subsequent use of violence against civilians. He identified the problematic and ambiguous guidelines and procedures regulating the behavior of police at different ranks and the failure of leaders at different levels to provide careful and close oversight during crowd control. Accordingly, working with police at every rank and at a local level, his team developed new practically oriented and targeted regulations, which were then linked in with standard operating and disciplinary procedures and embedded in regularized training. Again, the project did address situational and systemic underpinnings of a regularized human rights violation by police, but it was not torture. That a certain portion of the projects addressed human rights issues other than torture using the situational approach may suggest that the prevention approach that we developed did have merit as a strategy for bringing about organizational-level changes in a way that gets at certain violations, but that torture, perhaps because of its gravity or the forces that keep it in place, is not amenable to this approach. Alternatively, it could be that torture would be amenable to it, but that the design and its implementation would have to be modified by, for example, ensuring that projects tackling particular situational problems linked with torture take place across multiple scales, including not only local interventions, but also more broad-ranging policy changes. A third type of project was inspired by the recognition that some of the factors that contribute to the normalization and legitimization of torture are ones beyond the security sector organizations themselves, or, using a more complex mapping, that factors operating at the level of security organizations are authorized and legitimized by factors beyond them. As became transparent during our conversations, the change agents were not blind to the inadequacy of trying to bring about change solely within their own organizations. When, early on in the process, we shared with them our findings about the 18

This was discussed in Chapter 1. See, for example, Copelon, “Recognizing the Egregious in the Everyday”; Thomas and Beasley, “Domestic Violence as a Human Rights Issue.”

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contribution that political, legal, and social-level factors make to the prevalence of torture, little of this was news. Drawing on their own experience, they spoke to us about the problem of political pressure and corruption, the failures of the legal system, and societal attitudes to how police ought to treat “criminals” and other undesirables. A cynical listener might protest that their pointing to these other factors was no more than a way of their avoiding their responsibility, and certainly, blame shifting could have explained some of their readiness to point to factors beyond their own sphere of influence. But motivation aside, their observations were not incorrect. In some cases, this recognition led to their trying to include extra-organizational factors within the scope of their projects, and in others, they worked outside the organization altogether. An example was a project developed by an OIC of a police station in Nepal. He had observed that drug users, predominantly young men, figured prominently among those subjected to systematic violence or banal torture at the hands of police. In tracking the causes or contributing factors, he identified factors both inside and beyond the police. For example, there was a general societal view that drug addiction was a form of moral failing and that to place them back onto the “correct” path, drug users needed to be “corrected” through harsh disciplinary means. Parents even asked police to beat their sons as a way of stopping them using drugs. Police in turn assumed these same attitudes, classifying drug use as a form of willful rebellion and assuming that it was their role to use violence to discipline these refractory individuals. At the attitudinal level, this way of holding drug users could be understood as the failure to recognize drug use as a public health problem, or the sign of broader social and economic ills, in which case, the remedy would seem to be to reframe drug use in these terms. At the same time, the prevalence of these attitudes cannot be abstracted from institutional realities, and specifically the absence of drug treatment programs or allied services. In the absence of treatment facilities, social workers, and a range of allied interventions, the police often functioned as the sole institution available for “controlling” young men who used drugs. In his project, this change agent mapped out all of these attitudinal and institutional factors, and then tried to find ways of addressing factors at as many levels as were accessible to and feasible for him. Within his immediate organizational environment, he worked with his own police personnel on their attitudes to and understandings of drug use, as well as changing the procedures that were adopted when drug users came into custody. Beyond the walls of the organization, he held community forums on drug use in an effort to educate the broader community about the nature of the problem and

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effective responses to it. At this point, he obviously hit a wall between moving from attitudinal to institutional change, given that effectively taking on the latter would have required his having access to and influence over decisions concerning the development and distribution of treatment resources and facilities. What we saw in this project was an example where the change agent constructed a robust map of the situational factors contributing to a real and immediate case of systemic torture, but fully addressing the factors he had identified was beyond his reach. This project well illustrates the need for prevention projects to have access to levers of change across various dimensions of the overall ecology. Given that in this case, that would mean access to working on issues of public health, and perhaps the general disenfranchisement, alienation, and lack of economic opportunities for young people, it also reminds us of what makes this so difficult. An example of a project that engaged a different level of the overall ecology altogether was one that took as its focus corporal punishment in schools. As I discussed in Chapter 4, societal support for violence as a disciplinary tool across a range of institutions, including in families and schools, can be linked with the normalization of police torture. Our extended research in the northwest of Sri Lanka made evident how the positive sanctioning of violence in other contexts flowed into the normalization of police use of violence against detainees, and conversations with the change agents in Sri Lanka similarly linked corporal and police violence. As it happened, one of the change agents was both a member of the Sri Lankan Coast Guard, and a deputy school principal, and for him, this connection was a live and pressing one. Given his privileged access to an educational institution where corporal punishment was systematically used, he decided that this would be the focus of his project. He went to work on a range of issues within the school, moving out from a narrow focus on rules concerning the use of corporal punishment, to a broader set of factors contributing to a culture of violence in the school. How might we evaluate this project in terms of our objectives? Approached narrowly, his project certainly did not address torture. Approached through a broader mapping that moves out from the boundaries of the security sector organizations themselves into their broader ecology, one can see how his project was attending to contributing conditions that are formally located beyond those boundaries, but indirectly penetrate them. The fourth type of project captured the limitation with our approach that I see as most important in terms of lessons for the future. These were projects where the change agents did identify situational factors that conditioned or created risks of torture occurring, and did go to work on some of the

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organizational practices or processes that contributed to these factors. The problem was that the practices or processes that they addressed were highly local, specific, and of limited reach. Again, it is critical to understand that what caused this narrowness was not some failure on their part to appreciate the need to take in a wider sweep of factors. It was rather an inevitable effect of working with individual change agents, each of whom had a limited sphere of influence. The issue I am getting at here can be graphically illustrated using the image of a problem tree, a tool that we in fact used with the change agents in designing their projects. The trunk of the tree represents a particular process or structure in the organization that contributes to or underlies the use of torture, which represents one of the branches. For example, we might draw a problem tree that identifies the dehumanization of drug users as the trunk. Feeding into this the trunk are a number of roots – in this case, for example, general beliefs about the causes of drug use, community pressure to punish drug users, the lack of alternative facilities for drug rehabilitation, and so on. Within the scope available to the change agents, only a fraction of the entire root system could be the focus of their projects. But of course, consistent with my discussion of causality in Chapter 3, it is highly unlikely that this fraction alone is either a necessary or sufficient cause of the identified problem, and correlatively, going to work on this portion will be insufficient in solving the identified problem, or changing the identified structure, process, or cultural practice. In some cases, the impact of their focusing in on specific and reachable factors was simply that the scope of the prevention strategies was narrowed. One police officer in Nepal who occupied a senior position in a crimes investigations unit, for example, took on developing and putting in place practical training for investigators in the PEACE method, a nonviolent interviewing technique that has been shown to be highly effective in generating accurate information.19 He combined this with the introduction of CCTV equipment into interviewing rooms. The strength of the project was that it targeted a systemic factor that can be clearly linked with the use of torture, and although one might argue that there was nothing particularly novel about training officers in nonviolent interviewing techniques or the introduction of monitoring technology to curb torture, the fact that these reforms were being built from within the organization, rather than imposed by external actors, 19

See, for example, Andy Griffiths and R Milne, “Will It All End in Tiers? Police Interviews with Suspects in Britain,” in Investigative Interviewing, edited by Tom Williamson (New York and Abingdon: Routledge, 2006).

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may have increased their penetration and sustainability as organizational practice. The weakness of the project was that while it attended to one or two specific (albeit important) factors, it left untouched the range of other related organizational factors discussed in Chapter 4 that lead to police interrogators using torture to obtain confessions.20 In other instances, the effect of focusing in on a fraction of the root system of a highly variegated problem tree was more deleterious. A striking example is the work that one of the change agents did on working conditions, workplace culture, and stress. As discussed in Chapter 4, our own research and a number of other researchers have found that low morale, frustration, and stress experienced by low-ranked officers contributes to their acting violently toward detainees. In turn, factors such as working conditions and their being treated disrespectfully and even violently by more senior officers, combined with factors such as isolation and long separations from family and community, contribute to their stress and frustration. A project tracking the problem tree model might thus identify one of these factors, say working conditions, as a site of intervention. As this example makes uncomfortably evident, however, one can follow this process and end up working on an issue that is extremely remote from the problem of torture itself. Indeed, even successfully bringing about changes to the identified root will likely make no difference at all to the occurrence or cessation of torture. Appalling working conditions may be a contributing factor, but unless it is done in combination with a range of other, harder, reforms, improving conditions, even radically, will make little or no difference to whether torture occurs. Even more worryingly, one cannot but be suspicious that the choice to work on this type of issue had little to do with an authentic or well-grounded belief that it would contribute to preventing torture. What transpired in this last category of change agents’ projects points to a structural weakness in the approach itself, or at least in its articulation in this project. We had started with the observation that torture occurs as the result of a broad and interlocked set of causes or conditions that need to be understood as occurring across a multisystemic ecology. Locating torture as the outcome of this complex of linked factors, I argued, helps us to escape the logic of linear causal stories. More specifically, this approach helps us understand what is wrong with explaining torture using causal explanations that either privilege the role of abstracted agents or pinpoint one aspect of the overall system and attribute all other problems to this ultimate cause. A detailed ecological map 20

One could also criticize it for its limited reach, but as pilot projects, it was never envisaged that these trial projects would have wide reach.

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that identifies the range of factors across different systems that are actually at work in producing torture also gives us far more access to designing strategies for change than monolithic explanations of torture as the result of “structure.” Although perhaps rhetorically powerful, a macro term like structure can leave us without concrete and specific objects to go to work on. Its very capacity to capture everything can leave us with nothing to get our hands on. And although the idea of structure correctly captures the way in which specific actions are rooted in factors that are often remote and difficult to discern, ultimately, the action of prevention needs to start with getting one’s hands on the often nitty-gritty mechanics – the levers and dials – that need to be accessed to bring about change. The advantage of the detailed ecological map is that it allows us to move from a macro term like structure, and, in concrete terms, to trace the meso- or micro-systems, processes, relationships, meanings, and institutional practices that together constitute structure. And it is then on these meso- and microfactors that we can go to work. And yet, the danger of doing so is precisely the opposite of the one generated by trying to change “the (macro) structure”: we end up with the minutiae and not the ecology. Now we have our hands on those nitty-gritty mechanics, the levers and dials, but in a piecemeal way, and perhaps only on those that play a relatively minor role in the overall ecology, and will thus, for different but complementary reasons, fail to prevent torture. That much of what the final projects ended up doing was playing with fairly peripheral levers and dials while torture persisted was symptomatic of this danger. Erring too far toward the poles of feasibility and access, and perhaps too carefully trying to avoid the different risks of abstraction and resistance, the intervention ended up leaving untouched far too much of the world that produces torture. Seeing it, naming its parts, and even mapping it turned out to leave us well short of being able to get our hands on it.

Vignette 8

There is a story from southwest Asia about a king who asked his seer to predict the yield from the upcoming grape harvest. The seer predicted that although the yield would be excellent, the king would never taste a drop of the wine. Some time passed, and the grapes had been harvested and fermented, so the king called the seer to show him this great result at the same time demonstrating that the seer’s prediction had been wrong. Just before the king was about to take a triumphant drink of the harvested wine, one of the courtiers came to announce that a bear had appeared in the garden where the grapes had been grown, so being king, he went over to kill it. Unsurprisingly, it was the king who was killed, thus never drinking the wine. I discovered this colorful story when I was thinking about the meaning of the proverb that is said to be derived from it: “there is many a slip ’ twixt cup and lip.” The randomness of the slip in this case somewhat exonerates the king of responsibility for his plan not coming to fruition, certainly far more than I would exonerate myself for not anticipating certain risks or putting in place certain safeguards when planning this project. Still, the story strongly resonates with the experience of taking a plan out beyond theory, and then even further out beyond any type of controlled variables, and then into a world where whatever the bear stands for is in ample supply. My question is, can we look back over that whole scene and catch at least some of the places where the slip is wont to happen?

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In the shadow of her intimate witness of the horrors of the Shoah, and as an astute reader of Kant, Hannah Arendt attended the trial of the Nazi mass murderer Adolf Eichmann expecting to see radical evil embodied.1 Instead, she found a man so incapable of independent thinking, and by extension of autonomous action, that his life and his acts were reduced to the residues of his coordination with a system.2 Eichmann’s crimes, she thought, were not the offspring of his evil intentions. Rather, in view of his inability or refusal to think about what he was doing, they are better construed as an expression of the system within which he was embedded. From a political perspective, Arendt’s most important insight was that this "thoughtlessness" was not some type of individual failing on Eichmann’s part, but was itself an effect of a form of politics and social order that not only gave rise to systematic wrongdoing, but also destroyed the space in which thinking could arise. In this instance, the background was totalitarian politics, with its unique dynamics of massification, its “iron bands” of ideology, and its destruction of

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Although we cannot know her inner thoughts, I am drawing in the first instance on Arendt’s discussion in The Origins and Totalitarianism of the “radical evil” of concentration camps and subsequent correspondence about this part of the book with Karl Jaspers. See The Origins of Totalitarianism, 443; Lotte Kohler and Hans Saner, eds. Hannah Arendt and Karl Jaspers, Correspondence, 1926–1969 (New York: Harcourt, 1992), 166. In a letter to Mary McCarthy of September 20, 1963, commenting on a negative review of Eichmann, she also notes the contradiction between her position in that book and her earlier discussion in Origins of radical evil. See Carol Brightman, ed. Between Friends: The Correspondence of Hannah Arendt and Mary McCarthy 1949–1975 (San Diego: Harcourt Brace and Company, 1995), 141. The principal text is Arendt, Eichmann in Jerusalem. Beyond Eichmann, one finds further developments of her ideas on the link between the failure to think and politics in The Life of the Mind, vol. 1: Thinking (New York: Harcourt Brace Jovanovich, 1978), 185; “Socrates,” in The Promise of Politics, edited by Jerome Kohn (New York: Schocken Books, 2005), 177; “Thinking and Moral Considerations: A Lecture.”

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political freedom;3 but as Arendt made clear when she turned her attention to developments in twentieth-century late capitalist societies like the United States, technologization, mass commodification, and the “introduction into politics of Madison Avenue methods”4 also, albeit in their own manner, risked evacuating the space of individual thinking.5 Different political and social constellations, in other words, could provide the conditions under which evil acts could be systematically perpetrated by people in whom no evil intent could be found. As Arendt portrays them in these works, such political and social arrangements represented degraded and aberrant forms of human association, which narrowed the opportunities for humans to realize what is best in the human condition – the capacity to think and act, and to bring the new into existence. In this book, by contrast, I have argued that there is no need to look to extremes or even degradations of more common social and political forms to find that people routinely commit terrible wrongs that far exceed their individual intent. Indeed, I would suggest that when it comes to systematic wrongdoing, the typical case involves precisely this type of social and political formation of individuals’ orientations and actions, and the exception would be the case where individuals are the original source of their own crimes.6 No doubt Arendt was correct in observing that there are certain types of political and social order that are especially destructive to human autonomy and the capacity to act ethically, with totalitarianism being an extreme case, but the shift that her work effected from the foreground of the evil perpetrator to the background of the world from which he emerged has a far wider application than to the extreme cases she analyzed. The fact that Eichmann did not act as an autonomous agent in the Kantian sense in no way, however, obviated his criminal guilt, nor, in Arendt’s view, the imperative to punish him. True, her analysis of the etiology of mass crimes involved an extremely wide attribution of responsibility, far wider than many people would feel comfortable with;7 but she still drew a sharp and absolute 3

4 5

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7

As Arendt put it, “The aim of totalitarian education has never been to instil convictions but to destroy the capacity to form any.” The Origins of Totalitarianism, 583. Hannah Arendt, On Revolution (Harmondsworth: Penguin, 1990), 276. On the dangers of technological developments for action, see in particular Arendt, The Human Condition. On the effect of public relations and advertising on politics, see Hannah Arendt, Crises of the Republic (Harmondsworth: Penguin Books, 1972). I do not wish to imply that Arendt would disagree with this contention. In her analysis of the loss of absolutes, she is quite clear about the way in which people’s sense of right and wrong is informed by the guiding morals of the day, which may turn on a dime from good to evil. See Arendt, The Life of the Mind, 177. In the case of Nazi Germany, she insisted, it was impossible to remain in Germany and alive and not be responsible for the atrocities. See Hannah Arendt, “Organized Guilt and Universal

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distinction between this type of broadly distributed responsibility and criminal guilt or liability. Responsibility did not nullify guilt; and guilt should not be allowed to leak into responsibility. “This is an important point, worth making loudly and clearly,” she insisted. “Guilt, unlike responsibility, always singles out; it is strictly personal. It refers to an act, not intentions or potentialities.”8 Irrespective of the larger story that needed to be told about the etiology of his crimes, and irrespective of how Eichmann was inserted into and transformed by the dynamics of totalitarian politics, his actions made him guilty and criminally liable in an irreducible sense, and he deserved to be punished.9 Because Arendt’s most well-known writings about Eichmann and the question of thoughtless wrongdoing focused on his trial, it is the question of his guilt and the appropriateness of his punishment that tend to draw the greatest interest. But her insistence that perpetrators be punished irrespective of the presence of evil intent should not be mistaken for her thinking that punishment came anywhere near putting an end to the real problem. Punishing Eichmann, she believed, was required to fulfil certain moral precepts and achieve certain objectives,10 but she had no illusion that it would in any way touch upon the background that produced him and his crimes, nor would it have any effect on those who were responsible, but not guilty. Arendt’s understanding of the distinction between what I have here called background conditions and direct causes is most fully elaborated in Origins of Totalitarianism, a work explicitly concerned with “origins,” those factors that crystallize to become an event, but that can only be identified retrospectively. She elaborates the distinction with particular clarity and force in a lecture that she gave at the New School in 1954. While she recognizes the analytic

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Responsibility,” in Essays in Understanding, edited by Jerome Kohn (New York: Schocken Books, 1994). Hannah Arendt, “Collective Responsibility,” in Amor Mundi, edited by James Bernauer (Dordrecht: Martinus Nijhoff, 1987), 43. Although I do not pursue this line here, one might use Arendt’s distinctions of different ways of occupying the human condition to think through this transformation, or more generally, to map how people become thoughtless, in the sense that she uses this term. The justification that Arendt gave for why Eichmann deserved the death penalty could hardly be generalized: “no one, that is, no member of the human race, can be expected to share the world with you. This is the reason, and the only reason, you must hang.” Arendt, Eichmann in Jerusalem, 279. Beyond this, there is little direct articulation in her work of her theory of punishment. Her comments about the difference between criminals and concentration camp inmates in Origins (447) do indicate that she accepted a type of Kantian retributivism, where punishment constituted a form of recognition of the moral agency of the criminal. More broadly, given her theory of constitutionalism, we can infer that she saw the criminal law as publicly and authoritatively establishing the acceptable boundaries of action in a civil state.

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usefulness of the notion that one event might bring another into existence, she insists that it is hopelessly inappropriate when it comes to understanding how those events we are concerned with in politics or history unfold: The elements of totalitarianism form its origins if by origins we do not understand “causes.” Causality, i.e., the factor of determination of a process of events in which always one event causes and can be explained by another, is probably an altogether alien and falsifying category in the realm of the historical and political sciences. Elements by themselves probably never cause anything. They become origins of events if and when they crystallize into fixed and definite forms. Then, and only then, can we trace their history backwards. The event illuminates its own past, but it can never be deduced from it.11

The work of addressing and transforming those conditions, and of appropriately responding to the different categories of responsible others, lay beyond whatever objectives, or in the language I used earlier, whatever system purposes, were rightfully served by a criminal trial. Failing to make this distinction both endangered the ethical administration of criminal justice and risked neglecting the larger dynamics, thus leaving unchecked the destructive effects they would continue to have. The different dimensions of the totalitarian world – its politics, its ideology, its social and cultural forms, its organizational arrangements, its way of understanding human beings and history, and so on – all required a far more comprehensive and variegated set of responses. The importance of drawing a clear distinction between, on the one hand, the agents who perpetrate violations and how a society ought to respond to them, and on the other, the conditions under which they come to perpetrate those violations and how we need to respond to those conditions, constituted the starting point of this book. It is this distinction that allows us to begin the work of discerning what would ultimately be required to prevent systematic violations like torture. Of course, there is nothing new about insisting that to understand or prevent torture, we need to attend to the conditions under which individual perpetrators act. Indeed, torture is defined as a form of violence committed solely by state officials or those acting in an official capacity, thus circumscribing it as an institutional and not a personal act. Or in the language I used earlier, according to the definition of torture, individual perpetrators are not understood as the original source of this wrong. This definition does not, however, tell us what it means to say that torture is not 11

Hannah Arendt, “On the Nature of Totalitarianism: An Essay in Understanding,” The Hannah Arendt Papers at the Library of Congress, Essays and Lectures (Series: Speeches and Writings File, 1923–1975, n.d.), 7.

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a personal or individual act, nor, I have argued, has sufficient scrutiny been brought to the question of what it means to understand torture as institutional. It is these questions that I have insisted we need to interrogate, because they will be critical in devising effective preventative strategies. Most often, to say that torture is not personal or individual, but committed by state officials and is thus institutional, is taken to mean that an official policy of torture comes down from high political offices, which low-level officials are then required to obey. If one adopts this interpretation, then it would seem to follow that it is the high-level policy and those who devise it and require its implementation that need to be targeted in prevention interventions. This is only momentarily satisfying though, because pointing to state policy and political leaders as the source of low-level perpetrators’ actions does not in itself answer the further question of why this policy exists or why political leaders devised and enforced it. In other words, our original question recurs at this higher level: what are the conditions under which these higher-level perpetrators were acting? One way of answering this question is to attribute to the people at the apex of the state’s political order some variety of psychopathy, pathological cruelty, or perhaps an absolute lust for power, thus ascribing to them “natures,” intentions, or motives that do not call out for any further causal story. From this, it would follow that what is required is to punish these ultimate perpetrators as severely as possible, which in turn means criminalizing torture, both as the precondition for punishment and in the hope that it will act as a deterrent for similarly inclined others. Alternatively, one might argue that certain forms of government in themselves create the conditions that generate abuse and the promulgation of such policies, in which case the response needs to involve strategies aimed at bringing about a radical overhaul of the political order. Or one might see the answer in a completely different direction, located with structural forces like global capitalism that shape policies and political leaders’ actions. Again, this diagnosis would inspire appropriately calibrated strategies, in this case aimed (in simple terms) at countering or overthrowing capitalism. Each of these answers may contain some, and indeed an important, truth, but what truth they have will be partial, both as diagnosis and as the basis for prescribing preventative actions. This is difficult to see when we can trace a direct line between a political leader’s order, a written policy prescribing torture, and its enactment by state officials.12 But the “banal” or nonspectacular torture that has been my subject plainly demonstrates that the 12

As was clearly the case in the line between senior officials in the George W Bush administration, the torture memos, and the use of torture in Guantanamo Bay, for example.

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institutional context goes beyond both direct orders and the sphere of state politics itself. Start with the low-level perpetrators for instance, say police who routinely beat people in detention. It is evident that (for the most part at least) they are not committing torture because of some personal motivation, but are acting in their capacity as agents of the state. What does that mean? If we look for the political orders or directions that they are following, our search may well be fruitless. Admittedly, high-level political leaders may tolerate, turn a blind eye to, or even implicitly approve this type of everyday violence. Regularized torture may even be conducive to certain political objectives, like marginalizing or controlling particular groups. But to insist that the torture inflicted in countless locations around the country is the outcome of an explicit state program is to misunderstand the phenomenon at issue. It is also, and this is the most important point, to prioritize one line of causation at the expense of all others, to train all our attention on politics as if everything is, or could be, contained there. Of course, the state is relevant, even central, but when we focus solely on causes that emanate from the sphere of the state or politics, we occlude those that emanate from the spheres of society, culture, the criminal justice system, ideology, and security sector organizations. Or perhaps we do acknowledge them and their effects, but we understand them as epiphenomenal to the ultimate political line of causality, and thereby assume that they will be adequately dealt with if we deal with the sphere of politics. Alternatively, if we adopt the structural (neo-Marxist) diagnosis, then the state, along with all of these other dimensions, is epiphenomenal to the politics of the economy, and once we have reordered the political economy, everything else will (supposedly) fall into line. The flaw in these frameworks, and similarly many of the causal stories that we tell about torture, is that they are too linear and too one-dimensional. As a result, they form the basis of overly linear and one-dimensional prevention strategies. If, as an alternative, we start with an ecological model, we can develop more comprehensive and multidimensional diagnoses that could provide a stronger foundation for multidimensional prevention strategies. Interpreted through an ecological model, the statement that torture is not a personal, but an institutional act means that it is produced within a multisystemic ecology that includes forces or dynamics that are located in the spheres of state politics, the criminal justice system, the organizations where torture is taking place, and the societies within which they are located (and perhaps in other spheres also). The model thus affirms that torture is an institutional practice, but the qualifier “institutional” is here understood in its most capacious sense to include regulative norms, implicit and explicit rules, and the formal and informal organizations

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that instantiate them. These include, but surpass, the orders, causal dynamics, and logics of the political sphere alone. They are, as I suggested in the Introduction, the ecology of the poisoned orchards within which the bad apples grow, and will continue to grow so long as the poison circulates. Crucially, an ecological model does not imply a uniformity of power, or that each sphere is equally influential, either in terms of its impact on the other spheres or in terms of its effects on the behavior of security sector personnel. Nor does it imply that each sphere is smooth or homogenous in its dynamics. What it does imply is that the causal dynamics will be complex and multidirectional. In the case of torture, for example, it is almost certainly going to be the case that the sphere of state politics will be of prime importance, although even then we can use the ecological model to help us break down the apparent monolith of the state. Moreover, comparative research may lead us to conclude that under certain types of social or historical conditions, or certain institutional arrangements, certain types of relationships between the different spheres tend to prevail.13 We can, and should, bring what we know about such patterns to bear in our analysis of any particular situation; but the specific character of the causal dynamics at work in any specific context will always need to be worked out, including through empirical research. Thus, one of the principal arguments of this book has been that to understand the nature of systematic torture, one has to widen the aperture of analysis of the “institutional context” of torture, and do so in a manner that is multidimensional, historically specific, and sensitive to the particularities of the case. In making this argument, and to assist in working out how we might map this more complex causal field, I have drawn on a number of lines of thought, including situational theories of institutional violence, ecological theories of the multisystemic formation of individuals’ behaviors, public health theories concerning the etiology of pathological values and behaviors, third-way or practice theories of the co-constitution of habitus and field, and actor–network theories concerning the distributed and networked production of agency. In so doing, my aim has not been to propose a grand synthetic theory that transcends and integrates each of these, nor would I see this as appropriate. At different points where we are trying to make sense of what causes torture, and to work out how best to address those causes, each provides a different type of tool. Together, they help us to do the intellectual, and perhaps even some of the 13

For example, research conducted by both Beatrice Jauregui and Rachel Wahl on policing in India describes the particular constellation of the police, society, and the legal system, whereby police, often with support from large parts of the society, commit violations, apparently to compensate for the weakness of the legal system. See Jauregui, Shadows of the State; Wahl, Just Violence.

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affective work required to make sense of wrongdoing in non-agent-centric ways, and thence to trace the complex and multisystemic dynamics that cause or condition systematic wrongdoing.14 By this point of the book, I hope that different readers will have drawn from these different theories in ways that will speak to their particular concerns, objectives, and orientations. Nevertheless, there is one part of the argument that I want to highlight. Throughout this book, one of my principal, and perhaps most provocative, aims has been to counter the idealism that tends to dominate how we think about what determines our actions, and specifically to the case at hand, why people inflict torture. We may like to think of ourselves and others as autonomous beings who, albeit informed by our normative environment and the incentive structures within which we operate, assess the situation, evaluate the evidence and arguments, draw conclusions, and then decide upon a course of action. Indeed, as I argued in Chapter 5, this conception of humans as autonomous agents lies at the heart of the social imaginary of human rights. But there is a great deal of evidence indicating that the factors shaping both our evaluative processes and our actions are far more variegated and far more material than would appear in this story, and this is especially the case when we are acting in institutional contexts that provide little room for individual initiative or variation. What we do, and indeed what we believe, are largely shaped by the material and institutional conditions in which we are embedded. We are located, and not only in the sense that is broadly accepted, within something we call “culture” that, as generally understood, still floats as a type of ether of ideas, but also as embodied beings in material conditions. This means that what we include in “institutional” needs to include material arrangements and conditions. Moreover, the material dimensions of the institutional environment are not mere vessels or tools deployed by human agents, but form part of the causal story. Again, the metaphor of the poisoned orchards and the model of the ecology demand that we recognize the materiality of the etiology of torture. The materialism I am proposing here should not, I want to stress, be confused with a form of crude behaviorism, where our actions could be read off from a balance sheet of incentives and disincentives, rewards and punishments. Nor (although this essentially amounts to the same thing) should it be understood as reducing us to the effects of mechanical or deterministic forces. Rather, the nature of human agency needs to be recast such that it is 14

My reference to affective work refers back to my discussion in Chapter 5 concerning how individualizing narratives of wrongdoing work with the anger and blame to provoke public outrage in a way that might impede more structural analyses.

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embedded in a broader ecology that includes material and ideational dimensions – the physical conditions within which we work and live, the ways that institutions are arranged, the ideas about what is right and good and what is of value that circulate in this embodied social space, the forms of our relationships, the shape and flows of our dependencies, the ways that we have of speaking about all of this, and so on. We remain agents, in the sense that we are the types of beings that act and are not simply acted upon, as we remain beings who make sense of our world and have ideas about it; but the being that acts, who makes sense, and has ideas is also located and embodied. Philosophically, this position refuses the ideal of the pure autonomous, transcendent agent. Practically, it means that any strategy designed to change our sense making, our ideas, and our actions needs to operate at the level of our embodied and located experience. A further implication of this materialism is that while the theories I have expounded will help to orient us to understand why torture occurs and persists, theory will only get us so far. Understanding the particular factors that normalize, legitimize, incentivize, authorize, facilitate, and create a permissive environment for torture as it occurs in particular contexts requires contextual, including in situ, empirical research. That does not mean that each prevention project needs to start such research afresh; people who live and work in different fields and positions in the countries or contexts in question will likely already have a wealth of relevant knowledge, and much of what needs to be learned can be found out by tapping into their knowledge, or, even better, collaborating with them. Entering the scene with a set of assumptions based on what was the case elsewhere will, however, inevitably occlude at least some of the distinctive factors, dynamics, and relationships at work in this context, and thereby risk undermining any prevention effort. Again, this argument is not altogether new. Monitoring bodies (under my category of non-accusatory monitoring) clearly appreciate the importance of finding out what the case is in the actual contexts where they are seeking to prevent torture. Indeed, in some cases, this strategy involves forgoing the potential advantages of publicity (and shaming) for the advantages of being able to gain access to see what is actually going on. What I have been arguing for here is an expansion in the scope of this type of exercise beyond empirical research on places of detention, such that attention is paid to the whole ecology that produces torture, or within which it occurs. In this regard, the country visits of the Special Rapporteur on Torture provide an excellent starting point, constrained chiefly by the insufficient resources available to, and high demands made on the Office of the Special Rapporteur and the limits governments place on its ability to access places of detention. Even

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then, and as illustrated by my discussion in Chapter 4, the type of research that I am proposing would ideally be undertaken would be still broader in scope, including, for example, attention to social, cultural, and historical factors. Of course, in practice, this cannot be done by each prevention project, and for this reason (along with many others) greater cooperation and collaboration is, as I will suggest at the end of this conclusion, one of the obvious implications of my analysis. The foregoing discussion concerns my principal arguments regarding the conditions under which torture occurs, what causes it, and what keeps it in existence. This part of the argument corresponds to the requirements of the first half of a ToC for preventing torture. In summary, I have argued that if we are to develop the type of understanding that will provide a strong foundation for developing effective prevention strategies, several moves will be useful. First, we need to adopt a logic of causation that is sufficiently capacious and heterogeneous to encompass causal or conditioning factors that stand in different types of relationships with torture. Such factors may normalize, legitimize, incentivize, authorize, facilitate, or create a permissive environment for torture, as well as cause torture in a more direct straightforward sense (as in “He ordered the torture to occur”). Second, we need a way of mapping these different types of factors so that they stand in nonlinear relationships with each other. This is particularly important with respect to the relationship between agent-level factors, for example the incentives that individuals may have to use torture; situational factors, for example the conditions of detention; and more macrostructural factors, for example the position that police occupy vis-a`-vis certain groups or more generally in relation to the state and civil society. To understand how they interact and fold into each other, we need a map that does not require that agents or their situations or the structures within which they are embedded stand at the bottom of a causal chain, with others positioned somewhere along the linear path along which the links of that chain pass. This, in turn, requires a social imaginary that departs in significant ways from the classical social imaginary assumed in the dominant approaches to human rights. Third, and moving from abstract theory to the issue of torture itself, we need to open up our causal map to the different spheres of the overall ecology within which the people who perpetrate torture are located. This ecology includes the spheres of politics and the state, the criminal justice system, the broader society, and the security sector organization. The inclusion of these spheres within the map of the ecology is of course only indicative, and the ecology could be mapped slightly differently to include other spheres, such as ideology

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or culture. What matters is that we recognize the multisystemic character of the ecology such that we can open our analysis to factors operating in different spheres, and also allow that those spheres do not stand in a linear or static relationship with each other. We need to imagine this as a multidimensional and dynamic space. Fourth, we need a causal story that takes seriously material and institutional conditions and not only what we might conceive of as immaterial factors like values, attitudes, knowledge, ideology, and so on. More accurately, we need to recognize that these apparently immaterial factors are embedded in material conditions, and that they both inform and are informed by those conditions. This causal story, as I argued in Chapter 5, must disrupt traditional conceptions of human-centric agency, but without simply turning it on its head to produce a structural analysis that casts humans as system effects. The type of causal story that will provide the best infrastructure for building effective prevention strategies will be one that weaves together humans, their relationships with each other, the institutional arrangements within which they are embedded, and the material conditions within which they live and work. Finally, and moving from the form of the causal story to its substance or content, a robust causal story will be one that is filled out with rich and interdisciplinary data that we acquire through a judicious application of the wealth of data acquired in prior studies, combined with research, including empirical research, into the actual situation where we are working to prevent torture. These moves can, I hope, help us to more richly, fully, and accurately articulate what it is that causes the problem (torture) and what keeps it in existence. But they will not, in themselves, tell us what to do about changing what we find to be the case. Even if we come up with a complex, multidimensional map, which details the specific problems with the conditions of detention, the weaknesses in the criminal justice system, the attitudinal factors or cultural processes, and so on, we still need to work out how to bring about change. Far too often, I have argued, the independent task of working out the “how” of change is not sufficiently distinguished from the work of the “what” of change, or in the language of the ToC, the second half of what that theory requires is collapsed into the first. Alternatively, too often we take it as given that we ought to bring to the job the tools of change that we have at hand, or that have traditionally been used, without examining the efficacy or appropriateness of those tools to the task before us. Working out how to bring about change to the principal factors that contribute to the systematic use of torture remains by far the most difficult task, and at the end of this process, it appears to me in some ways more daunting than it did at the beginning.

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Nevertheless, the research that we conducted on how to bring about certain types of systemic change, combined with our experience in trying to bring about change in security sector organizations, have yielded insights on which I hope others can build. Before considering the ideas that I think the work of this book has yielded, and in view of the arguments developed over the last seven chapters, I want to return to reflect upon what has been the principal tool for change adopted by those seeking to prevent torture within the framework of human rights, namely the law, and most prominently, the criminalization of torture. The evidence that legal reform needs to be part of the prevention toolkit is indisputable, but the evidence also clearly indicates that legal reform is insufficient. Grasping why it is insufficient, and even more so why the reasons for its insufficiency have not been appreciated, can in itself inform how we ought to approach the business of bringing about change. As I argued in Chapters 1 and 2, the deployment of law as a preventative tool suggests more than one theory about the causes of torture, and more than one theory about how to effectively change the relevant causal factors. In the first instance, by threatening and inflicting punishments, the criminal law may be understood as an appropriate strategy for deterring the individuals who would commit torture (including ordering it), insofar as they are understood as the proximate cause of torture.15 The causal story is thus one about wrongdoers, and the preventative effect operates via deterrence. The problem with this approach, I have argued, is that it generates stories that narrow our understanding of wrongdoing, or, as Gerry Simpson put it, the juridification of systematic wrongdoing results in “histories that favour a particular genus of human action, namely, the deliberate and premeditated.”16 Arendt’s distinction between the reasons for punishing the guilty and the need to attend to the conditions under which the guilty act does similar work. But we can also understand law (including the criminal law) as harboring a far more collective, social, and political understanding of wrongdoing. Interpreted thus, the effects of law are wrought through the educative, expressive, or constitutive work that it does in shaping individuals’ general and thus

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I say here that the wrongdoer is understood as the proximate cause, but we might also say that the wrongdoer is the site of proximate causes, which might, depending on how one understands “cause”, be motives, intentions, or objectives. Simpson, “Linear Law”, 164. In this regard, in an essay she wrote in 1945, Arendt points to her dissatisfaction with the classical paradigm of punishment, which assumes that “guilt implies the consciousness of guilt, and punishment evidence that the criminal is a responsible person.” Arendt, “Organized Guilt and Universal Responsibility,” 131.

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socialized normative orientations.17 From an ecological perspective, this certainly seems more promising. Hypothetically, were the criminal law fully effective in establishing a comprehensive normative environment in which all people embraced its precepts concerning what they should and should not do, we could stop there. Or perhaps we would be wiser to stop once assured that through its deterrence function, law would also impact individuals’ calculations of costs and benefits. But for this to happen, the law would have to operate as a type of “trump,” or a meta-steering mechanism that was effective, irrespective of what was happening within the other spheres I have pointed to. Once we understand causality ecologically, we can appreciate why this is unlikely to be the case. Most likely, if the law does appear to effectively steer the behaviors of all the people under its jurisdiction, including state actors, it is able to do so because the other factors that shape behavior are operating in a complementary fashion. Because they form part of the background, we may fail to miss the operation of these complementary factors, and, even more importantly, we may not notice the broader institutional, cultural, economic, or political changes that were required to establish them.18 Undoubtedly, legal sanctions need to be part of the picture, but they cannot complete it. The theoretical doubt that the ecological model casts on the effectiveness of law as a trump gains confirmation when we look at empirical studies of its effectiveness in the field of torture prevention. As I discussed in Chapter 2, studies on the impact of international human rights law on the incidence of torture confirm the interdependence of law with other factors. As Beth Simmons summarized her findings, international law is most effective in preventing torture in “polities where complementary channels of influence – public demands, foreign pressures, powerful and well-respected courts – come together to demand an end to torture.”19 Moreover, as Carver and Handley 17

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As Nicola Lacey puts it, “the framework of values perceived as necessary to the maintenance, stability, and peaceful development of the community.” Lacey, State Punishment, 176. On law and moral education, see Jean Hampton, “The Moral Education Theory of Punishment,” Philosophy and Public Affairs 13, no. 3 (1984). Norbert Elias’ work is instructive here. For example: “Undoubtedly, the transition to the integration of humanity on a global plane is still at an early stage. But early forms of a new, worldwide ethos, and especially the widening of identification between person and person, are already clearly discernible. There are many signs of the emergence of a new global sense of responsibility for the fate of individuals in distress, regardless of their state or tribe, in short, their group identity.” Norbert Elias, Society of Individuals (Dublin: University College Dublin Press, 2011), 151. Simmons, Mobilizing for Human Rights. She concludes that UNCAT commitments are most effective in countries “with volatile and transitional experiences with public accountability” because in such cases people have “strong incentives to mobilize to implement the international ban in domestic law” (305).

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found across all dimensions of prevention, there is a gap between the existence of domestic legal regulations on the one hand and, on the other, the realization of the practices they are supposed to establish and the preventative effect they are supposed to have. Finally, as Bullock and Johnson argued in their analysis of the impact of the human rights law on policing practices, police officers are “characteristically ambivalent” to law, and legal attempts to regulate security sector institutions may well meet with the thick resistance generated by existing institutional norms.20 Thus, even in contexts where there exist laws against torture or laws seeking to put in place the conditions that will prevent torture (such as certain conditions of detention), their constitutive, educative, and deterrent effects are limited. The problem is still graver in contexts where the existence of law is purely formal, or where these laws are contradicted, weakened, or undercut by other laws or informal norms, or where they are routinely undermined by the actions of representatives and agents of the state. In keeping with the preference for legal solutions, one common and understandable response is to try to strengthen laws prohibiting or addressing the conditions that generate torture, ideally to the point where they are able to effectively trump competing norms, informal laws, or the effect of other factors like organizational cultures. Again, there can be no doubt that stronger, more consistent, and more comprehensive laws will be more effective. But the shortcoming of this response, like those I have noted, is that it is too onedimensional. It does not, in other words, appreciate that the other spheres that form part of the overall ecology have their own causal or conditioning dynamics that will continue to shape what happens in state institutions and to influence what individuals within those institutions do. The causal or conditioning factors in these other spheres may both impede the effectiveness of law and, as Carver and Handley showed in their analysis of legal reform of conditions of detention, may not be responsive to legal interventions. Or to put this more positively, the causal and conditioning factors that operate across the different spheres of the overall ecology will be most responsive to interventions that are developed responsively to the nature of the distinctive causal dynamics and vectors of their particular sphere. In simple terms, the types of interventions that will be most effective in bringing about changes to, say, community attitudes or organizational cultures will be ones that are tailored to the logic and dynamics of community attitudes or organizational cultures, and we should not assume that legal reform, or any other particular type of intervention, fits each equally well. Nor should we reduce the changes in these other 20

Bullock and Johnson, “The Impact of the Human Rights Act 1998,” 632.

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spheres to something like “the enforcement or administration of law,” as if they are mere appendages to the essential (legal) modality of change. The multisystemic nature of the causal ecology demands a multiplicity of types of approaches to reform and an appreciation of the sui generis nature of these different approaches. This analysis, then, generates a first thought about effective prevention strategies. Just as the ecological or multisystemic model of causality implies that distinctive logics or dynamics are at work in the different spheres that form part of the overall ecology, so, too, we need to appreciate that factors operating in these different spheres may be responsive to different types of interventions. Similarly (and consistent with the first point I made in my summary of the moves we need in our thinking about causality), factors that stand in different types of relationships with torture (normalizing, incentivizing, and so on) may also be responsive to different types of preventative strategies. It will, for example, take a different type of intervention to shift a cultural context that normalizes than to shift incentives. Prevention strategies need to recognize that there exist a multiplicity of causal or conditioning factors, of different types and in different spheres, and be appropriately adapted to the type of causal factor they are seeking to address. It also follows from this thought that in designing interventions, it would be beneficial to tap into the research, knowledge, and expertise that have been developed on the dynamics of, and bringing about change in, the specific sphere or type of factor that is being addressed. An obvious example here would be human rights education and training which, as it stands, remains relatively impervious to the developments that have taken place in other fields, not only in effective pedagogy in general, but also in the types of pedagogic processes that are conducive to attitudinal and value change. Another example, illustrated in Chapter 6, is that in seeking to bring about organizational reform in the security sector, there is much to be learned from work on organizational transformation and institutional reform in other sectors, as well as on normative and behavioral change in the field of public health. This latter example also illustrates that in drawing on developments in cognate fields, significant adjustments may need to be made to take into account the distinctive nature both of security sector organizations and of torture. Nevertheless, as it comes to recognize the complexity and multiplicity of the factors that cause or condition the violations it seeks to prevent, and to encompass factors that lie beyond the spheres of politics or the criminal justice system, human rights would do well to become a more omnivorous animal. The second thought about prevention that has emerged from my analysis concerns the choice about where in the overall ecology to intervene, and how

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to intervene there. As I argued in Chapter 6, the ecological model, or the type of analysis of causality prompted by approaches like ANT, would seem to imply that to bring about real change, one needs to address all parts of all of the different spheres within the overall ecology, in a coordinated manner, and taking into account how each interacts with the others. But this possibility exists only in theory; actual interventions will always involve choices and exclusions, some of which will not be based on the ideal produced by the analysis, but forced by the realities of practice. The most strategic interventions, I argued in Chapter 7, will be the ones that navigate a sound route between what our analysis tells us is the ideal site and modality of intervention, and what our scoping of the conditions tells us is feasible. In other words, our causal analysis will provide guidance as to which factors or which sphere have the greatest influence, both on torture and on the other spheres and factors, and thus where the intervention is likely to have the greatest impact on the overall ecology. It should also (following the first principle) tell us what the most effective tools will be. Our scope analysis will tell us about the opportunities and constraints within which any intervention can be developed, including considerations such as what (and whom) we have access to; the availability of resources, expertise, networks, and time; the existing skills, orientations, and aptitudes of the actors and organizations involved; and the history of past interventions. The best choice will hug neither the curb of the ideal, generated by the causal analysis and the analysis of the most effective modality of change, nor the curb of the feasible generated by the scope analysis. This best choice, or navigating this sound path, may not be available under the conditions that currently exist. Where this is the case, strategic action may require a more staged approach, and a certain forbearance in moving directly to intervene where one can, or with the tools that one has. This would be the case where, for example, the site of intervention that our analysis tells us we need to work in if we are to effect change is beyond our current reach. Preliminary work in establishing the conditions where particular types of action will be feasible, say through developing certain types of relationships or building particular types of expertise, may be far more productive than simply taking the action that is feasible or directly accessible. In a similar way, we should be wary of pursuing interventions because they follow the tracks of the well-worn paths of prevention work, or because they flow from the expertise that we have already developed, without also and independently scrutinizing their effectiveness. These two thoughts apply to torture prevention interventions in general, but given the focus of the Torture Prevention Project on bringing about reforms to security sector organizations that would contribute to the prevention of

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torture, I would also like to propose a number of thoughts about intervention more specific to the sphere. Thus, presuming that we have decided that the intervention will take place at the level of security sector organizations, what do we need to keep in mind? The first thought here flows on from the questions raised about where and how in the overall ecology to intervene, given the implications of the multisystemic ecological analysis. What does this mean for the usefulness or efficacy of an intervention that has as its primary, if not sole focus security sector organizations? Taking our experience as a starting point, it seems that in some situations, a prevention strategy operating only at the level of the security sector organization could be capable of bringing about useful changes to that organization, that is, changes to the situational factors that contribute to or create risks of torture occurring. However, given the subordination of police and military to political-level actors and systems, any effort that does not also have tendrils out in the political sphere may well be stymied. In Nepal, the relative autonomy of the police and APF, combined with the fact that we had in principle support from the relevant ministries, meant that it was possible to work productively at this level.21 In Sri Lanka, this was resolutely not the case, and attempts to work in any way with the police and military were hamstrung to the point of virtual standstill. This likely reality of the subordination of security sector organizations to political factors suggests a more serious objection, and a reasonable one, to the usefulness of working in this sphere at all. According to this objection, any changes one makes to the processes, structures, or cultures of security sector organizations will be nothing more than alleviations of symptoms, not solutions to the root causes. If the problem is the existence of a racist ideology, what good will it do to attend to conditions of detention or the way that certain groups of people are referred to? If the problem is a hierarchical and radically inegalitarian social and political order, what use is there finding ways of building different types of sociality among security sector personnel or between them and the communities in which they work? These are important and troubling worries, and they demand an answer. Mine, though no doubt imperfect, is twofold. First, as I have tried to argue throughout this book, I reject the form of analysis or explanation that depicts causal vectors as moving “up” from macrostructural arrangements to their symptomatic effects. It is both too linear 21

By “working productively”, I do not mean that we were able to bring about changes that prevented torture, but rather that we could work productively with the security sector organizations as our principal partners on security sector processes.

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and too abstract. This is why, early on, I rejected the language of root causes. Causality, I have argued, is more variegated, multidirectional, and complex, and correlatively, change at “one level” is not necessarily the effect of change at the “deeper level.” This does not mean that all changes are going to be equally effective; some, because they are made to epiphenomena, will of course be shucked off with great ease. It does mean that changes at multiple sites of the overall ecology will be necessary, and may be effective in bringing about changes at others. One thus needs to distinguish between two propositions. The first is that security sector reform will likely be dependent on political support, and may require active work at the political level to ensure that support and to stave off resistance or other actions that will undermine its effect. The second proposition is that there is nothing to be achieved by working specifically and directly at the level of security sector organizations. We have good reason to accept the first. But we would only have good reason to accept the second if we believed that change at the political level automatically and without resistance penetrated the practices, processes, structures, and cultures of security organizations, or if we saw the security sector as epiphenomenal to politics. As I hope this book has shown, the schema on which this belief rests erroneously dissolves the specificity and occludes the independent causal impacts of what occurs within the different spheres of the overall ecology, including within security sector organizations. Nevertheless, as discussed earlier, it will not be possible to get at those factors if the security sector organizations are subordinate to external actors and systems that have positive interests in retaining the status quo, and remain external to the reform process. In short, in the absence of support from the relevant state actors and systems, work at this level will likely be seriously impeded. At the same time, such support, in the absence of specific work at this level, will not be sufficient. My second answer is perhaps more ethically troubling. For the most part, I agree that the “ultimate” difference will only be made to practices like torture when we are able to change the macro shape of our political orders and our conceptions about what it means to be human and who counts. At the same time, I think that there is something cruel and arrogant about dismissing the more modest changes that might be accessible to us in the near or medium term. Faulting reforms as failing to get at the “deep” causes, or for indirectly enabling their persistence, has an appealing ring when one is attuned to the longue dure´e or has one’s eye on the macro picture; and it is critical that there are people working for these larger transformations. But it is also critical that work is being done to address the conditions that exist now and that shape what happens to the individuals held in detention. We should not delude ourselves about the ethical costs involved in rejecting reforms that might make

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a difference to what happens to particular individuals in the near or medium term because accepting such reforms would defer structural transformation. This genuine ethical conundrum cannot simply be passed over, or it can only be passed over through an act of abstraction. As a version of a longstanding presumed conflict between reformist and revolutionary change, this tension is not new, but in each iteration, it requires our serious consideration, or even better, our attempt to simultaneously work on both. Assuming, then, that we are focusing on the intervention at the level of the security sector organization, the fourth thought, flowing on from a similar analysis of power, is that the intervention needs to have the active support and buy-in of the leadership of the organization itself. But support from leaders in the official hierarchy will not be sufficient; there needs to be support and buyin from leaders at all levels, including at the operational level. This support must be more than nominal or formal. It must be expressed in a willingness to demonstrate support in action and public behavior, and indeed in a willingness not only to conform with change, but to lead change. At the same time, and as we learned somewhat painfully, ensuring active buy-in from the inside cannot be at the expense of deep and authentic reform. In a similar fashion to my point about effective strategy, effective organizational reform needs to negotiate a sound route between active buy-in and support from the inside, and authentic and deep change to the habitual patterns that characterize the organization’s modus operandi. Hugging too closely to the curb of active support and buy-in is likely to result in changes that change nothing at all of real importance; hugging too close to the dogged demand that the atrocity-producing situational factors be overhauled is likely to result in resistance, or temporary adjustments that are ditched as soon as the external parties have left the scene. Fifth, and flowing directly from the type of materialist causal analysis that I have proposed, even if we hold that it is the culture of the organization, or the views that people have about the use of torture, that need to be transformed, the objects of change must be concrete and material – the practices, systems, and hardware of the organization. Cultures, attitudes, values, knowledge, objectives, motivations, and beliefs do not float above the material arrangements, but are embedded in them, and we can best and most sustainably get at them through changing these material arrangements. If, as I have argued, the actions that people take are shaped by their institutional and material conditions, what is required is to curate those conditions such that they become the ones conducive to actions that respect the human rights of others. To be effective, this curation needs to reach and touch whichever processes, structures, systems, or situational factors are actually at work in shaping action.

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This emphasis on curating the conditions under which human actions are produced stands in tension with Arendt’s ideas about thoughtlessness with which I began this conclusion. Arendt, recall, analyzed how certain political and social conditions produce human beings who are (virtually) incapable of autonomous thinking or action. What she thought followed from this analysis was the imperative to build new social and political orders – ones conducive to the development of people who were capable of autonomous, responsible action and thinking. This is an excellent ideal, not simply as a means for protecting human rights, but with respect to life on the planet. Nevertheless, my response to the world she thought produced thoughtlessness is far more modest, and also perhaps less hopeful. And this is so because I consider inescapable the fact that individuals are embedded in ecologies that shape them, for good or ill. If Arendt believed that what followed from her analysis was the need to build a different world, one that would be hospitable to thinking and free action, for the purposes of this book at least, I have argued that what follows is the need to build strategies for a world where independent and truly ethical thinking and free action are rare, and will likely remain so. If Arendt thought that coordination, as she called it, represented a breakdown, I have argued that it represents much of the human condition, and that we would do better to accept this as the reality we need to work with, than hope that it will be otherwise. Or, perhaps less fatefully, that while we are working for this greater transformation, we work out how to limit the damage by curating the ecology. The sixth thought about effective reform, consistent with the basic idea of a ToC, is that the intervention should not be generic, but tailored to address the specific practices, structures, and cultural processes that facilitate, incentivize, authorize, normalize, and create opportunities for torture in the organization that is being targeted. Combined with the importance of getting buyin from the inside, this might be effectively achieved by working collaboratively with people who have a deep and lived understanding of the organization and are thus in a position to know what those specific practices, structures, and cultural processes are. On the other hand, as we found, handing over too much control of this task can result in deflections or other forms of subtle resistance to targeting what will challenge the status quo. The seventh thought is that the intervention ought to be comprehensive, operating across the different aspects of the organization (recruitment, training, promotions, incentives, cultural processes, symbols, rituals, and so on), across different levels of the organization (policy and at the level of operationalization), and broadly across the organization (not only in one police station or district). Achieving this level of comprehensiveness certainly presents

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a hefty task, and interventions that fall short on one or more of these dimensions should not be written off as useless, but their efficacy, penetration, and sustainability will be impeded. Finally, and as a reflection of the way that I have framed this book, interventions need to be iterative. Thorough and candid evaluations of prevention efforts not only need to be conducted, but to be fed back into future prevention efforts. As I said at the outset of Chapter 6, the project that we undertook probably failed, on its own, to prevent torture, but a candid analysis of the impediments that it faced, the wrong turns we took, and of course what we could only have learned through experience, may mean that it will not, perhaps after this writing is long complete, fail to contribute to what will be a protracted endeavor. This thought about the importance of iterative learning, of sharing with each other what we know, what we do, and what we learn from what we do, speaks back to what we might consider a meta-implication of the ecological understanding of torture. If systematic human rights violations like torture are, as I have suggested, effects of worlds, and preventing them means shifting those worlds, the model of “intervention by project,” or “strategy by human rights organization,” cannot be up to the task. An ecology of the production of torture must, in other words, be met with an ecology of prevention, where human rights scholars, human rights organizations, and human rights advocates are as linked, coordinated and interconnected, and thus, perhaps as powerful, as the worlds they hope to transform.

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Index

Association for the Prevention of Torture, 15, 32, 54, 70, 93 Torture Prevention in Practice, 60, 72 Yes, Torture Prevention Works, 95–96 atrocity-producing situation, 136, 138, 141 authority conflict with conscience, 135 identification with, 132–33 obedience to, 132 authorizing the practice of torture, 140 awareness, 135 axiomatic knowledge, 254–55

Abu Ghraib, 2, 79 abuse of junior security personnel, 173–74 accountability, systems of, 256 accusatory monitoring, 56–60, 195–96 evaluation of effectiveness, 85–89 narratives of, 212 Theory of Change, 82–85 actants, 226–27 actor–network theory (ANT), 224–27, 233–34 Advocacy Forum (Nepal), 28, 50 agency, 181–85, 316–17 autonomy and, 134, 316 conformity and, 131–32 focus on individual, 188–91 moral disengagement and loss of agency, 137 moral priority in human rights idea, 202–5 normative, 203–4 -oriented and structural explanations of social phenomena, 118–19 situational understandings of torture and, 191–99 structure and, 10–11 tension with supra-individual causal factors and, 106–7, 116–17, 119–21, 132 torture as destroyer of, 204–5 Algeria, 162 Amnesty International, 30, 32, 48, 57, 64, 82, 85, 93, 211, 238, 330, 334, 341 Combatting Torture, 60, 72 Arendt, Hannah, 13–14, 193–94, 195, 281, 283, 309–12, 328 Aristotle, 154 Armed Police Force (APF), Nepal, 67, 155, 174, 246, 247 human rights training vignette, 67–68 Asch, Solomon, 130–31

bandobast, 181 Bandura, Albert, 272 moral disengagement, 136–38 Social Learning Model, 138–39, 270–71 beatings for ‘moral correction’, 167–68 police views on, 164–65 public belief in, 167–68 behavioral change. See normative and behavioral change blame, 137, 154, 213 bodily knowledge, 255 Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, 51 Bohm, David, 108, 109–10 Bourdieu, Pierre, 216–24, 270 comparison with actor–network theory, 227 fields, 218, 219, 221–22 Breaking the Silence, 274–75 bribes, 161

351

352

Index

Bronfenbrenner, Urie, 122 ecological model, 121–22, 234, 306–307, 314–15 Brunne´e, Jutta, 197 Bullock, Karen, 76, 322 Bush administration, 8, 38 bystander interventions, 272–75 capital social and cultural, 218–20, 222 symbolic, 270 Carver, Richard, 12, 15, 70, 77, 81, 90, 93, 94, 95, 197, 321 Castoriadis, Cornelius, 201 causal field, 113, 115 causal stories, 12, 14, 101–5, 107–8, 110, 117, 121, 145, 154, 182–83, 188–89, 211, 306, 314, 319, 320 causes of torture, 8–9 abnormal and normal factors and context, 111–12 conditions and, 108–17, 151, 311–12 explanations of motives, 106–8 house fire example of conditions and, 109, 115 link between systems objective of prevention of torture and, 115–16 mapping relationship between conditions and, 117–23 multi-scalar nature of, 162–63 partiality of explanations, 107–8 researching factors that are conditions or, 244–50 root cause analysis, 117–18 telescoping in and out on, 113, 114 what counts as, 106–23 Centre for the Study of Human Rights, University of Colombo, Sri Lanka, 239, 244 Chan, Janet, 183, 217–18, 223, 254–56, 265 change agents enrolling, 293–95 identifying, 289 projects, 301–07 Chile, 3, 44 classification of principal schools of torture prevention, 45 accusatory monitoring, 56–60 legal sanctions and ending impunity, 45–51 non-accusatory monitoring, 51–56

colonial legacy in policing in South Asia, 172–73 Committee Against Torture (CAT Committee), 37, 42, 49 compliance, dynamics of, 130–34 condition torture, factors that, 139–40 conditions of torture, 312 causes and, 108–17, 151, 311–12 concepts linking action of torture and, 121 house fire example of causes and, 109, 115 mapping relationship between causes and, 117–23 researching factors that are causes or, 244–50 confidentiality, 52, 53, 54, 56 conformity, obedience and, 130–34 conscience and conflict with authority, 135 construction of a separate reality, 140–41 context of torture, 102–4, 111–12, 268 Copelan, Rhoda, 43 corporal punishment, 166–67, 168, 304 corporate bodies and legal personhood, 207 corruption, link between torture and, 160–61 crime of opportunity, torture as a, 101–2 criminal investigation training, 158–59, 160 criminalization of torture, 11–12, 15, 45–48, 192–95, 320–23 persistence of torture and failure of, 77 Theory of Change, 46 cultural change, organizational and. See organizational and cultural change culture link between individual behaviour and institutional, 176–77 organizational, 20, 93, 95, 149, 150, 222–23, 254–56, 257 data on torture, 34 definitions of torture, 2–4, 35–44 distinguishing between spectacular and mundane, 37 ‘lesser’ acts and, 35–37 moral judgements, 38 non-state actors, 42, 43 questions of meaning, 39–41 under-inclusivity and expansion of, 41–43 US torture memos, 38 violence against women, 41–42 what counts as ‘real torture’, 37–38 Delaplace, Edouard, 60, 72, 93, 335

Index democracy torture and, 83, 85 transition to, 89, 170, 239 detention conditions and safeguards, 12, 72, 93–95 monitoring and, in prevention logic, 71–72 Theory of Change, 94 Dhungana, Shiva, 169, 173 dictionary knowledge, 255 directory knowledge, 255 dissent bystander interventions, 273–74 obedience and, 131, 132, 134 domestic violence, 59 dominating objectives, 15 drug use link between torture and, 16–17, 303–304 planting evidence of, 179 police beatings, 167 ecological model, 121–22, 234, 306–307, 314–15 ecological systems theory, 122–23 education and training, human rights, 13, 62–65, 99–100, 323 effectiveness of torture prevention, 21–22 challenge of evaluation, 69–73 detention conditions and safeguards, 93–95 legal sanctions and ending impunity, 74–80 monitoring, 80–89 taking lessons forward, 95–98 training, 90–93 Eichmann, Adolf, 13–14, 194, 195, 309–11 Engle, Merry, 48 equipment, inadequate, 157–58, 160–61 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 52, 80–81, 197 European Court of Human Rights, 36 evaluation of effectiveness of torture prevention, challenge of, 69–73 Evans, Malcolm, 52, 80, 81 Evans, Richard, 193 everyday torture, 4, 17, 252, 295 causes of, 9–10 distinguishing between spectacular and, 37 evidence obtained by torture, 12 judges’ attitudes to, 179–80 Fishbein-Ajzen theory, 139, 271–72 funding research projects, 241–42

353

Gadamer, Hans-Georg, 39, 40 genocide, 5, 123–25 government action against torture in response to public pressure, 84–85 guilt, 143, 194, 206, 311 habitus, 216–17, 221–23 Hackman, Richard, 114 Handley, Lisa, 12, 15, 70, 77, 81, 90, 93, 94, 95, 197, 321 Hart, H.L.A., 111, 116 Hathaway, Oona, 74 Henkin, Louis, 74 High Value Detainee Interrogation Group (HIG), 62 Hills, Alice, 148 Holocaust, 56 Honore´, A.M., 111, 116 human rights agent level causality, focus on, 188–89, 191–92, 196–97 as neo-imperialism, 295, 279 compelling narratives, 210–14 conflicts with security perrsonnel rooted in identity, 249–50 considered to be impractical, 164–65, 174 contradictions in views of security sector personnel, 163–65 criticism of approaches to torture, 4–7 dispute over meaning of torture, 39–41 education and training, 13, 62–65, 99–100, 323 evaluating effectiveness of NGO discourses on, 85–86 habitual strategies of, 235–36 ICRC report on soldiers’ respect for humanitarian law and, 146–47 interface between local and international, 79–80 legal reform, reliance on, 197 moral priority of agency in idea of, 202–5 need for new relationship with security organizations to effect change, 276–77 perceived as unjust, 175–76, 177–78 perspective on state violence, 151 philosophy of, 202–4 preventative strategies of defenders of, 44–65 professional imagination of, 205–10 root cause analysis, 117–18

354

Index

human rights (cont.) security sector views on personnel, 294–95, 278 situational approaches to causality of torture, 192, 198 social imaginaries and, 189–90, 199–216, 228–30 training vignettes, 67–68, 99–100, 278 Human Rights Watch, 57, 84, 156, 160, 176, 212 Hume, David, 109 idealist and materialist explanations of historical change, debate on relationship between, 118–19 impunity, legal sanctions and ending, 45–51 evaluation, 74–80 India human rights violations by police, 176–77 living and working conditions of police, 156–57 medical practitioners’ views on torture, 156–57 official and unofficial constraints on police, 181 police corruption, 160–61 prison guards study, 152–53 Indonesia, 95, 161, 211 Information, Motivation, Behavior (IMB) model, 271–72 informational influence, 131 institutional violence, situational conditions of, 101–42 causal stories, 101–5 causal talk and confusion, 106–8 causes and conditions, 108–17 concept of causes, 101–2 contradiction between ethical responsibility and, 153–55 dynamics of compliance, 130–34 legal or regulatory environment, 129 mapping relationship between causes and conditions, 117–23 Milgram experiment, 99–100, 124–27, 129, 135 moral disengagement and ‘conditioning’ torture, 134–42 ordinary people and extraordinary violence, 123–29 parallel line test, 130–31 security organizations, 140–42 situational hypothesis, 123–42

Stanford Prison experiment, 127–29 terminology, 102–4 vignette, 99–100 what counts as causes of torture, 106–23 intelligence non-coercive methods of gathering, 62–63 obtained under torture, usefulness of, 62, 63 International Commission of Jurists, 53 International Commission of Red Cross (ICRC), 52, 56 report on soldiers’ respect for human rights and humanitarian laws, 146–47 survey of public attitudes to torture, 83 International Covenant on Civil and Political Rights, 31 international law, 321–22 definitions of torture, 35–36 interface with local law and practices, 79–80 right to be free from torture, 31 treaty ratification and impact on incidence of torture, 74–76 interviews, non-coercive methods for, 62–63, 305–306 Ireland, 172 Israel Breaking the Silence, 274–75 IDF bystander interventions study, 273–74 working at check points, 231–32 Jauregui, Beatrice, 181 Johnson, Gerry, 256 Johnson, Paul, 76, 322 Joinet, Louis, 47 judges, 94, 179 attitudes to evidence obtained by torture, 179–80 justice police administration of, 179 torture as a form of rough, 178–79 juvenile justice, 10 Kathmandu School of Law, Nepal, 239, 244 Kelman, Herbert C., 139, 140 Kony campaign, 210–11 Kotter, John, 253, 254 Kriegel, Blandine, 203 Kumar, Dhruba, 171 Lacey, Nicola, 46 language, normalizing torture through, 259–60 Latin America

Index naming and shaming campaigns study, 88 study of relationship between human rights law and practice, 87 Latour, Bruno, 11, 224–27, 234 law. See also international law ICRC report on soldiers’ respect for human rights and humanitarian, 146–47 interface between international and local, 79–80 relationship between policing and, 148–49 tort, 114 Lazreg, Marnia, 162 leadership need for support at all levels for effective reform, 327 organizational reform and, 260–62 Social Influence Model and, 275–76 legal imagination of human rights, 205–10 person, 206–8 reform, 15, 77, 197, 236, 320–23 sanctions and ending impunity, 45–51, 74–80 systems and situational factors in security organizations, 141–42 Levy, Sheldon, 132–33 Lewis, David, 110–11 Lifton, Robert, 136 living and working conditions of security sector personnel, 152, 155–57, 172–73 logframe project management tool, 241–42 Lord’s Resistance Army, 210–11 Lutz, Ellen, 87 Mackie, John, 109, 113 macro factors and structures, 5–6, 20–21, 88, 103–4, 231–32 Marks, Monique, 276 Martin, Tomas, 152–53, 263 masculinity, torture and concept of, 133, 174 materialism, 316–17, 327 debate on relationship between idealism and, 118–19 medical inspections of detainees, 56, 72, 180 metaphors, 210–14 Milgram experiment, 99–100, 124–27, 129 Milgram, Stanley, 99–100, 124–27, 135, 146 Miller, Peter, 83 Milosˇevic´, Slobodan, 194 monitoring accusatory, 56–60, 85–89, 195–96, 212

355

and detention in prevention logic, 72 evaluating effectiveness of, 80–89 government actions in response to civil society pressure, 84–85 non-accusatory, 51–56, 80–82, 317 public attitudes to torture, 82–84 Theory of Change, 54–55, 80–81, 82–85 moral disengagement blaming and dehumanizing of victim, 137 conditioning torture and, 134–42 distorting consequences of action, 137 obscuring causal agency, 137 reframing behavior, 136–37 theory, 136–38 moral judgements and definitions of torture and, 38 Morgan, Rodney, 80, 81 motivation, Fishbein–Ajzen theory on, 139, 271–72 mundane torture, 4, 17, 252, 295 causes of, 9–10 distinguishing between spectacular and, 37 Mutua, Makau, 211 myths, rituals and symbols, 258–59 naming and shaming, 56–60, 195–96 evaluation of effectiveness, 85–89 narratives of, 212 Theory of Change, 82–85 narratives, mythical and metaphorical, 210–14 National Commission on Law Enforcement and Observance of the American Bar Association (Wickersham Commission), 78–79 national preventative mechanisms (NPMs), 54 Nazis, 31, 56 Concentration Camps, 123 Neild, Rachel, 262 neo-imperialism, 295, 279 Nepal abuse of junior police officers, 173–74 Advocacy Forum, 28, 50 beatings for ‘moral correction’, 167–68 criminal investigation, 158 criminal justice system, 178–81 human rights training vignette, 67–68 inadequate equipment, 157–58 judges’ attitudes to evidence obtained by torture, 179–80 links between normalization of violence in social context and police violence, 165–66

356

Index

Nepal (cont.) living and working conditions of low-ranking security personnel, 155–56 Maoist insurgency and aftermath, 159 police adminstering justice, 179 police reaction to human rights workshop vignette, 278 politicization of police, 169–70, 171 public attitudes to torture, 161–62 root causes of torture, 167–68 selection for project, 239–40 Special Rapporteur Mission 2005, 28, 50 Neurath, Otto, 280–81 non-accusatory monitoring, 51–56, 317 evaluating effectiveness of, 80–82 Theory of Change, 54–55, 80–81 non-governmental organizations, 28, 50, 88 evaluating effectiveness of human rights discourse, 85–86 naming and shaming, 57–58 non-state actors, 42, 43 normalization of violence, 163–64, 165–66 normative and behavioral change, 266–76 bystander interventions, 272–75 context of, 268 drawing on public health evaluative research, 267–69 Information, Motivation, Behavior (IMB) model, 271–72 need for comprehensive programs, 269 political support required for, 269 Social Influence Model, 275–76 Social Learning Model, 270–71 normative and instrumental reasons for torture, 178–79 normative social influence, 131 Northern Ireland, 259, 265–66 north–south tensions, global, 147–48, 164 Nowak, Manfred, 44, 46, 60, 65, 74, 78, 250 obedience and conformity, 130–34 characteristics of leaders or peers inspiring, 133 dissent and, 131, 132, 134 Milgram’s experiment and understanding, 125–26 Ontario Human Rights Commission, 260, 261 Ontario Police Service Human Rights Project, 265

Optional Protocol to CAT (OPCAT), 53–54, 82, 196, 197 ordinary people and extraordinary violence, 123–29 organizational and cultural change, 25, 250–66 across all dimensions of organization, 265–66 anticipating and responding to resistance, 264–65 assimilation, 263–65 content, process and structural change, 265 difficulties in comparing security sector with other areas, 251–52 factors to support uptake and minimise pushback, 263–64 flawed logic of ‘linear’ models of, 257 leaders’ commitment to, 260–62 looking for evidence of effective strategies for, 250–53 need to involve all members of organization, 262 organizational paradigm, 256–57, 258 principles of, 253–66 similarities between security sector and other organizations, 252 symbols, rituals and myths, 258–59 taking a situational approach, 253 working ‘with the grain’, 262 organizational culture, 20, 93, 95, 149, 150, 222–23, 254–56, 257 organizational processes, 256 organizational structure, 256 PEACE method, 62, 305 persistence of torture, 4–7, 95 dilemma of, 30–35 failure to punish and, 77 PoKempner, Dinah, 84 police. See also security sector organizations; security sector personnel abuse of junior personnel, 173–74 administering justice, 179 axiomatic knowledge, 254–55 balancing human rights against pragmatic considerations, 164–65 beatings, 164–65, 167–68 bodily knowledge, 255 capital, 222 community policing study, 262 constraints in Nepal on, 181 corruption, 160–61

Index criminal investigation training, 158–59, 160 culture, 149, 150, 222–23, 254–55 dictionary knowledge, 255 directory knowledge, 255 enmeshment with other institutions, 180–81 habitus and ‘rules of game’, 221–23 human rights violations in India, 176–77 impact of Human Rights Act on UK practices, 337 in context of colonial legacy in South Asia, 172–73 leadership important to reform, 260–61 links between normalization of violence in social context and violence of, 165–66 living and working conditions, 152, 155–57, 172–73 north-south tensions in training, 147–48, 164 obedience and conformity, 132 political interference in, 169–71 pressure to produce results, 161 reform efforts in Northern Ireland, 259, 265–66 relationship between law and policing, 148–49 social pressure to use violence, 168–69 South African study, 276 Stephen Lawrence Inquiry, 259–60 political embedding of situational factors associated with security organizations, 141–42 interference in context of colonial legacy in South Asia, 172–73 interference in policing, 169–71 repression and relationship with public attitude to torture, 83–84 support for change, 269 systems and causes and conditions of torture, 302, 312–14 systems and individual actions, 309–12 Pollard, Matt, 60, 72, 93, 335 practical measures, preventative strategies focusing on, 60–63 practice, moving from theory to, 233–38 preventative strategies, 11–16, 32, 44–65, See also effectiveness of torture prevention accusatory monitoring, 56–60 altering situational factors that shape behavior, 135–36 attention to different approaches to, 13–14 Carver and Handley’s evaluation of effectiveness of, 12–13, 70–72

357

classification of principal schools of prevention, 45 comprehensive, 328–29 convergence between wider programs of reform and, 60–61 developing alternatives to resorting to torture, 61–63 different scales in, 73 difficulties in moving from theory to practice, 233–38 ethical tensions, 326–27 evaluative research on, 267–69 focus on situations and agents, 195–97 human rights education and training, 13, 62–65, 99–100 issues of where and how to intervene, 323–29 iterative interventions, 329 key principles for, 276–77 legal reform, 197, 320–23 legal sanctions and ending impunity, 45–51 material and concrete objects of change, 327–28 need for support of leadership at all levels, 327 non-accusatory monitoring, 51–56 practical measures, 60–63 primary, 45, 51, 52, 53, 63, 65, 114 punishment, 11–12, 45–48, 228–29 secondary, 45, 46, 51, 52, 53, 63, 64, 114 specific, targetted reforms, 328 tertiary, 45, 46, 47, 58, 63, 65, 96–97, 114 using ecological and multi systemic models of causality, 323 primary prevention, 45, 51, 52, 53, 63, 65, 114 private security firms, 42, 43 problem tree, 305, 306 project management tool, 241–42 psychiatric hospital, 262 public attitudes to torture, 82–84, 161–62, 163, 167–69 campaigning to change, 84 in society at large, 140–41 normalizing of torture, 163–64 outrage, 58 revulsion and horror, 209–10 public education programs, 65 public health attitudinal and behavioral change studies, 269–76 bystander interventions, 272–75

358

Index

public health (cont.) community popular opinion leader approach to HIV, 275 evaluative research, 122–23, 245–46, 267–69 Information, Motivation, Behavior (IMB) model, 271–72 meta evaluations of preventative strategies, 97–98 Social Influence Model, 275–76 Social Learning Model, 270–71 punishment, 77, 192–93, 194–95, 320 legal sanctions and ending impunity, 45–51, 74–80 of Eichmann, 195, 310–11 preventative strategy, 11–12, 45–48, 228–29 rationality of torture, 151–53 reality, construction of a separate, 140–41 recipe knowledge, 255 reduced alternatives, theory of, 132–33 reframing behavior, 136–37 Rejali, Darius, 72, 79, 133, 238, 260 responsibility, 153–54 actor–network theory and, 233–34 apportioning different elements of, 191 context and, 183 criminal, 14, 207, 310–11 diffusion of, 127, 128–29, 137 guilt and, 310–11 recognizing individual, 190–91, 194–95 shifting to victim, 137 right, torture as a non-derogable right, 31–32 rituals, myths and symbols, 258–59 Robbins, Vestena, 263–64 Rodley, Nigel, 3, 51, 121 root cause analysis, 117–18 Roth, Kenneth, 212–13 rough justice, torture as a form of, 178–79 routinizing practice of torture, 140 Russia, 93 Schachter, Stanley, 131 Scotland, 262 Scriven, Michael, 108 secondary prevention, 45, 46, 51, 52, 53, 63, 64, 114 security sector organizations. See also police comparisons with other organizations, 251–52 comprehensive interventions, 328–29

condemning while explaining torture in, 153–55 culture, 20, 93, 95, 150 dealing with resistance to change, 264–65 developing alternatives to torture, 61–63 ethical tensions in reform, 326–27 getting inside, 148, 150–81, 236 issues of where and how to intervene for reform, 323–29 iterative interventions, 329 leadership, 275–76, 327 material and concrete objects of change, 327–28 new relationship with human rights organizations to effect change, 276–77 organizational and cultural change, 250–53 readiness for change, 240 situational factors, 140–42 specific, targetted reforms, 328 working ‘with the grain’, 25, 262, 276 security sector personnel. See also police abuse of junior staff, 173–74 agency, 183–84 attitudes to human rights personnel, 294–95, 278 conflict with human rights rooted in identity, 249–50 contradiction between ethical responsibility and situational factors, 153–55 contradictions between views and actions on human rights, 163–65 gap between law and behavior of, 76–77, 86–87 human rights considered to be impractical, 164, 174 human rights perceived as unjust, 175–76, 177–78 human rights training, 13, 62–65, 90–92, 99–100 ICRC report on respect for human rights and humanitarian laws, 146–47 identification with authority, 132–33 inadequate equipment, 157–58, 160 living and working conditions, 152, 155–57, 172–73 masculinity concepts, 133, 174 meanings of torture, 39–41 normalizing of torture, 163–64 obedience and conformity, 132 prison guards study, India, 152–53

Index theory of reduced alternatives and low ranking, 132–33 torture definitional slippage, 38 sexual violence, 20–21 bystander interventions, 273 definition of torture to include, 41–42 Sikkink, Kathryn, 87 Simmons, Beth, 75, 321 situational conditions of institutional violence, 101–42 causal stories, 101–5 causal talk and confusion, 106–8 causes and conditions, 108–17 concept of causes, 101–2 contradiction between ethical responsibility and, 153–55 dynamics of compliance, 130–34 legal or regulatory environment, 129 mapping relationship between causes and conditions, 117–23 Milgram experiment, 99–100, 124–27, 129, 135 moral disengagement and ‘conditioning’ torture, 134–42 ordinary people and extraordinary violence, 123–29 security organizations, 140–42 situational hypothesis, 123–42 Stanford Prison experiment, 127–29 terminology, 102–4 vignette, 99–100 what counts as causes of torture, 106–23 situational hypothesis, 123–42 social and cultural capital, 218–20, 222 social imaginary a new human rights, 228–30 alternative approaches to causality, 190–91 compelling narratives, 210–14 idea of, 199–202 looking for new human rights, 214–16 moral priority of agency in human rights idea, 202–5 of human rights, 189–90, 199–214 professional imagination of human rights, 205–10 towards a new, 214–30 Social Influence Model, 275–76 social influence types, 131 Social Learning Model, 138–39, 270–71, 272 social phenomena, 10–11, 118–19 social pressure on governments, 84–85

359

on police, 168–69 South Africa, 261, 276 Special Rapporteur on Torture, 44, 49–51, 61, 78, 149, 159–60, 192, 250, 317 Mission to Nepal 2005, 28, 50 spectacular torture, 1–2, 4, 295 distinguishing between mundane and, 37 United States of America, 8–9 Sri Lanka beatings for ‘moral correction’, 167–68 colonial legacy in policing, 172 corporal punishment in schools, 166–67, 168 links between normalization of violence in social context and police violence, 165–66 normalization of torture in army training, 174 permission and access for project, 246, 285 police corruption, 160–61 police training, 158–59 politicization of police, 170–71 public attitudes to torture, 161–62, 163 rationale for beating suspects, 168–69 Scene of Crime Officers (SOCOs), 158 selection for project, 239–40 social pressure on police, 168–69 violent history, 159–60 workshop participants’ views on human rights, 278–79 Stanford Prison experiment, 127–29 Stephen Lawrence Inquiry, 259–60 structural factors, 103–4, 318 agency and, 10–11, 118–19 superior orders, 154 symbolic capital, 270 symbols, rituals and myths, 258–59 systemic factors, 123 Taylor, Charles, 200 tertiary prevention, 45, 46, 47, 58, 63, 65, 96–97, 114 Theory of Change (ToC), 16–17, 34, 229–30, 318–20 accusatory monitoring, 82–85 criminalizing torture and breaking cycle of impunity, 46 detention conditions, 94 education of security personnel, 64–65 making explicit, 97–98 non-accusatory monitoring, 53, 54–55, 80–81 Torture Prevention Project, 243, 286–87, 268 what and how of prevention strategies, 69–73

360

Index

theory of practice, 216–24 resonance with actor–network theory, 227 theory to practice difficulties in moving from, 233–38 vignette, 231–32 third way theories, 216–24 Tihar Jail, India, 152–53, 263 timing of campaigns, 89 Toope, Stephen, 197 torture memos, US, 8, 38 Torture Prevention Project, 17–21, 236–43 background and contextual research, incountry research teams, 244–45 bringing about organizational and cultural change, 250–66 change agents’ projects, 301–307 constraints, 241–42, 282–83 deciding on level of intervention, 241 designing for change, 288–91 designing pilot projects for reform, 297–301 difficulties in moving from theory to practice, 233–38 effective normative and behavioral change, 266–76 enrolling change agents, 293–95 from research to design, 284–91 funding requirements and constraints, 241–42 human rights institutional partners, 239–40 ideals of design and reality of practice, 25–26, 282, 284–88 identifying change agents, 289, 291–93 key principles for torture prevention, 276–77 lack of cooperation from political and security personnel, 283 methods, 246–49 modified training, 285 omissions, 237–38 original plan, shifts from, 285–86, 288 overview, 241–43 participants, 248 permission and access in Nepal, 27–29, 246, 285–86 permission and access in Sri Lanka, 246, 285 persistence of training model, 299 phases, 242–43 project management tool, 241–42 readiness of security organizations to take part, 240

researching factors that condition or cause torture, 244–50 security personnel perceptions and experiences, in-country research teams, 245–46 selection of Sri Lanka and Nepal, 239–40 situational factors, identification of, 296–97 structural weakness of approach, 306–307 training, shift in understanding of role for, 286, 288 torture reality, 140–41 Totalitarianism, 310, 311–12 tough on crime approaches, 10 training and education evaluating effectiveness of human rights, 90–93 global north-south tensions, 147–48, 164 human rights, 13, 62–65, 99–100, 323 organizational culture and, 93, 95 persistence of training model in project, 299 police criminal investigation, 158–59, 160 shift in understanding of role in project, 286, 288 Theory of Change, 64–65 transitional justice, 239 treaty ratification, impact on state behavior, 74–76 trials, criminal, 193–94 Uganda, 210–11 United Kingdom Human Rights Act 1998, 76, 148–49 police reform in Northern Ireland, 259, 265–66 Stephen Lawrence Inquiry, 259–60 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 2, 28 definition of torture, 35 United Nations Decade for Human Rights Education (1995–2004), 64 United Nations Declaration on Human Rights Education and Training, 64 United Nations Human Rights Committee, 35 United States of America, 8 Abu Ghraib, 2, 79 debates over intelligence obtained under torture, 62, 63

Index High Value Detainee Interrogation Group (HIG), 62 spectacular torture, 8–9 torture memos, 8, 38 War Against Terror, 8, 33 Universal Declaration of Human Rights (Article 5), 31 vernacularization, 80 victims of torture dehumanizing, 140 moral disengagement from, 137 Vienna Declaration and Programme of Action, 64 violence. See also institutional violence, situational conditions of domestic, 59 normalization of, 163–64, 165–66 ordinary people and extraordinary, 123–29 social pressure on police to use, 168–69

361

violence against women, 20–21 expansion of definition of torture to include, 41–42 project to improve police handling of reports of, 301–302 Wahl, Rachel, 40, 176–79 War Against Terror, 8, 33 Wickersham Commission, 78–79 working and living conditions, 152, 155–57, 172–73 World Programme for Human Rights Education (2010–2014), 64 worlds of torture, 23 getting inside security organizations, 150–81 place of agency within, 181–85 that produce subjects who torture, 145–50 Zimbardo, Philip, 79, 188 Stanford Prison experiment, 127–29