Seeing torture anew: a transnational reconceptualization of state torture and visual evidence.

• Author: Viterbo, Hedi

This Article puts forward two interdependent conceptual reforms at the intersection of state torture, visuality, and law. First, to qualify as good evidence--legally and socially--torture images are usually required to be "accurate " and "transparent, " to successfully suppress all traces of the mediation and representation at work. However, this Article suggests that this prevalent visual-evidentiary paradigm unwittingly serves state attempts to downplay, decontextualize, deny, and disregard torture allegations. In this light, drawing on the interdisciplinary field of visual studies, this Article re-envisages the limitations as well as the critical potential of torture images.

Second, international and domestic law tend to conceptualize state torture in exclusively physical and mental terms. Challenging this tendency, this Article argues that the extreme gravity of the physical and mental violence of torture ought not obscure, and in fact warrants closer attention to two other, interrelated forms of violence through which state torture operates, acquires its meaning, is experienced, and is made possible: (a) the violence of state mechanisms of (in)visibility--representational violence--which includes state efforts to control by whom and to what degree state torture can be seen; and (b) the violence of law--legal violence--which manifests itself in the contribution of legal institutions, lawyers, and legal rhetoric to enabling, legitimating, and keeping state torture out of public sight.

The perspective of this Article is transnational, focusing on three cases of state torture: detainees in U.S. custody overseas; Palestinian detainees in Israeli custody; and opposition group members detained in Syria. Legal examples and visual materials from these three cases provide a contextualized basis for exploring what new light the proposed conceptual reforms can shed on the socio-political complexities and consequences of state torture.

INTRODUCTION A. The Dominant Visual-Evidentiary Regime and Its Pitfalls: Lessons from Abu Ghraib B. The Conceptualization of Torture in Physical and Mental Terms C. The Three Test Cases: The United States, Israel/Palestine, and Syria I. Representational violence A. Proximal Representational Violence B. Distal Representational Violence C. The Bigger Picture: Domination through (In)visibility II. LEGAL VIOLENCE A. Law's Complicity in the Physical and Mental Violence of Torture B. Law's Complicity in the Representational Violence of Torture C. Beyond Liberal Legalism III. EXERCISING VISION: RE-ENVISAGING VISUAL EVIDENCE OF TORTURE CONCLUSION INTRODUCTION

1. The Dominant Visual-Evidentiary Regime and Its Pitfalls: Lessons from Abu Ghraib

   The evidentiary status of visual images has been described as a matter of legal and social ambivalence. On the one hand, a common belief is that "a picture is worth a thousand words," that visual images are the closest available substitute for seeing the "real" thing. On the other hand, countervailing concerns abound about the potential deceptiveness and manipulability of visual materials. (1) These concerns are especially heightened when it comes to law (where reliability is paramount) (2) and torture (which, like other traumatic experiences, is often considered unrepresentable). (3)

   There is little if any ambivalence, however, as to how images are to be judged, for better or worse. Normally, visual images are labeled as "good evidence" if they successfully suppress all traces of the mediation (and representation) at work and, accordingly, appear to be "accurate," "transparent," and "neutral." (4) In the spirit of naive realism, (5) photographs or videos of torture are thus assumed to possess the power of "capturing" torture incidents and, in so doing, providing their viewers with access to "the truth," to what "really" happened. Given this belief in the self-evidence of the visual truth of state torture, no need arises to see--let alone render visible and scrutinize--the mechanisms and forces involved in the production of such visual images. (6)

   This prevalent visual-evidentiary paradigm has some acute failings, among which is its blindness to what, in naive realism, is not patently visible in photographs or videos of state torture--such as the broader social, legal, and political context that gave rise to the incidents these images "capture." A testament to this peril, and also a well-known exception to the paucity of photographic or video evidence of state torture, are the photographs and videos showing detainees abused and tortured in U.S. custody at Abu Ghraib prison in Iraq. When they became public in 2004, the Abu Ghraib pictures rapidly spread across the globe, attracting widespread attention, inciting public outrage and a demand that those responsible be held accountable for their actions. Ultimately, there were some official inquiries, which resulted, in a few cases, in reprimands, disciplinary action, and, for enlisted soldiers, courts-martial. (7)

   Yet, aside from being a mere fraction of all the pictures documenting abuse and torture at Abu Ghraib, (8) the photographs that were published in 2004 also decontextualized that torture, isolating it from its institutional setting. In Derek Gregory's words, these pictures rendered Abu Ghraib a space of both "constructed and constricted visibility":

   What happened at Abu Ghraib was glossed as unacceptable but un-American, appalling but an aberration, inexcusable but an exception.... [T]he photographs eventually came to stand in the way of an adequate understanding of what happened. The public gaze was directed toward the images, not the process and policy behind them. Critical attention was focused on acts isolated as a series of stills and frames rather than on the apparatus that produced them. (9) By detaching individual incidents from their broader context, pictures like these might thus end up implicated in keeping the systematic nature of state torture invisible. Responsibility in such cases might consequently be placed, if at all, on low-level state agents while senior figures remain unaccountable. Indeed, such has been the case with the Abu Ghraib incidents (10) and also in Israel. (11)

   Apart from sustaining impunity for state torture, the sort of visual materials that are likely to be considered good evidence are also susceptible to incorporation into state denial of torture allegations. (12) If certain visual materials, such as photographs, videos or visible physical injuries, (13) enjoy a privileged evidentiary status, (14) then their absence might facilitate the dismissal--in the form of either disregard or denial--of (verbal) torture testimonies. (15) This problem too was evidenced by the 2004 Abu Ghraib pictures, or more specifically by the scant public attention given to NGO warnings and Iraqi testimonies about abuse at Abu Ghraib prior to the release of these pictures. (16)

   Thus, the Abu Ghraib case demonstrates the troubling, if unwitting, contribution of torture images to the downplaying, disregard, or denial of important aspects or evidence of that torture. Viewed in this light, supposedly good visual evidence of this sort not only counters torture, but also, in more ways than one, plays into the hands of state attempts to control its (in)visibility. Therefore, beyond asking what elements of state torture are prevented from being publicly visible, an equally important question is what and how visibility itself conceals, how seeing more can mean seeing less. (17) Calls for more photographic and video evidence of state torture, as important as they may be, will not do (18)--at least not without also bringing into question the dominant representational regime of state torture.

2. The Conceptualization of Torture in Physical and Mental Terms

   Alongside the dominant evidentiary-visual regime discussed so far, another conventional view needs rethinking: the clear tendency, in both international and domestic law, to conceptualize state torture as exclusively physical and mental. (19) The U.N. Convention Against Torture epitomizes this tendency when defining torture, for its purposes, as:

   [A]ny 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. (20) While such legal definitions have rightly been criticized for failing to delineate what torture is and how it operates, (21) the prevailing understanding of torture as exclusively physical and mental has remained largely unchallenged.

   Yet, the violence through which state torture operates, is experienced, and is made possible is not solely physical and mental. (22) There are also the violence of state mechanisms of (in)visibility--representational violence--which includes state attempts to control the (in)visibility of torture; and the violence of legal rhetoric, institutions and professionals--legal violence--which consists of law's complicity in legitimating, bringing about, and concealing state torture. As will gradually become apparent, the dominant visual-evidentiary paradigm, whose pitfalls were discussed above, is part and parcel of this representational and legal violence of state torture.

3. The Three Test Cases: The United States, Israel/Palestine, and Syria

   Before examining some central manifestations of the representational and legal violence of torture in the U.S., Israeli-Palestinian, and Syrian cases, a brief overview of each of these is in order. The United States has been criticized for torturing and abusing...