The Hague campus of Leiden University today hosted the “Final Reflections” symposium of the International Criminal Tribunal for the former Yugoslavia (ICTY). Everyone from the institution showed up: current and past presidents, current and past judges as well as ad hoc judges, current and past prosecutors, media officers and archivists, plus a bunch of guests—gender advisors, professors, judges from other courts, and so on. Even the president of the International Criminal Court (ICC) spoke at the last panel. This was not a mere stock-taking exercise “between a variety of stakeholders,” says the agenda. Rather, it was an opportunity for said stakeholders to reflect on the ICTY’s legacy, ideally via a set of “short but emphatic statement[s] on the importance of international criminal courts and tribunals – particularly in today’s political climate.”
A guest post from Melanie Richter-Montpetit, responding to the disclosure of the Senate Torture Report in December. Melanie is currently lecturer in international security at the University of Sussex, having recently gained her PhD from York University in Toronto. Her work on issues of subjectivity, belonging and political violence has also been published in Security Dialogue and the International Feminist Journal of Politics.
– Frederick Douglass (1846)[i]
– James Baldwin (1977)[ii]
– Eric Garner (2014)
No, bin Laden was not found because of CIA torture.[iii] In fact, the US Senate’s official investigation into the CIA’s post-9/11 Detention and Interrogation program concludes that torture yielded not a single documented case of “actionable intelligence.” If anything, the Senate Torture Report[iv] – based on the review of more than six million pages of CIA material, including operational cables, intelligence reports, internal memoranda and emails, briefing materials, interview transcripts, contracts, and other records – shows that the administration of torture has led to blowbacks due to false intelligence and disrupted relationships with prisoners who cooperated. What went “wrong”? How is it possible that despite the enormous efforts and resources invested in the CIA-led global torture regime, including the careful guidance and support by psychologists[v] and medical doctors, that the post-9/11 detention and interrogation program failed to produce a single case of actionable data? Well, contrary to the commonsense understanding of torture as a form of information-gathering, confessions made under the influence of torture produce notoriously unreliable data, and the overwhelming majority of interrogation experts and studies oppose the collection of intelligence via the use of torture. This is because most people are willing to say anything to stop the pain or to avoid getting killed and/or are simply unable to remember accurate information owing to exhaustion and trauma.[vi]
So if torture is known not work, how come, then, that in the wake of 9/11 the U.S. at the highest levels of government ran the risk of setting up a torture regime in violation of international and domestic law? Why alienate international support and exacerbate resentments against “America” with the public display of controversial incarceration practices, as in Guantánamo Bay, instead of simply relying on the existing system of secret renditions? Furthermore, in the words of a former head of interrogations at Guantánamo Bay, most of the tortured and indefinitely detained are “Mickey Mouse” prisoners,[vii] reportedly known not to be involved in or not to have any information on criminal or terrorist activity against the U.S. and its allies. Drawing on previously published work, I will explore this puzzle by addressing two key questions: What is the value of these carceral practices when they do not produce actionable intelligence? And, what are some of the affective and material economies involved in making these absurd and seemingly counterproductive carceral practices possible and desirable as technologies of security in the post-9/11 Counterterrorism efforts?
Against the exceptionalism[viii] of conceiving of these violences as “cruel and unusual,” “abuse” or “human rights violations”[ix] that indicate a return to “medieval” methods of punishment, the post-9/11 US torture regime speaks to the constitutive role of certain racial-sexual violences in the production of the US social formation. Contrary to understandings of 9/11 and the authorization of the torture regime as a watershed moment in U.S. history “destroying the soul of America,”[x] the carceral security or pacification practices documented in the Senate Torture Report and their underpinning racial-sexual grammars of legitimate violence and suffering have played a fundamental role in the making of the US state and nation since the early days of settlement.[xi] The CIA Detention and Interrogation program[xii] targeting Muslimified subjects and populations was not only shaped by the gendered racial-sexual grammars of Orientalism, but – as has been less explored in IR[xiii] – is informed also by grammars of anti-Blackness, the capture and enslavement of Africans and the concomitant production of the figure of the Black body as the site of enslaveability and openness to gratuitous violence.[xiv]
Given half the chance
They danced around the truth
For most of my youth
Like you’re really going to jump off that roof
You lived your life
In a perfect paradise
The sun always shone
On your beaches with lies
– Leatherface, ‘Diego Garcia’ (2010)
In October 2005, then Foreign Office Minister Kim Howells stood before Parliament and reported that the UK government had granted no requests for extraordinary rendition in any part of British territory or airspace, and was aware of no such use. Critics – who suspected that the UK was indeed complicit in rendition for torture – pressed the point. So in December Jack Straw, who was Foreign Secretary, explained that “careful research” within government had turned up no evidence of renditions since 9/11 in UK spaces (land, air, or sea) and, again, no requests. The very next day Straw was giving evidence to the Foreign Affairs Select Committee, and was asked about the possibility of an investigation along similar lines as other EU states. Came the forceful reply:
I do not think that there is any case whatsoever for such an investigation here…I did what it is my duty to do, which is to provide a thorough comprehensive answer. That has been done. It has produced a nil return. Unless we all start to believe in conspiracy theories and that the officials are lying, that I am lying, that behind this there is some kind of secret state which is in league with some dark forces in the United States, and also let me say, we believe that Secretary Rice is lying, there simply is no truth in the claims that the United Kingdom has been involved in rendition full stop, because we have not been, and so what on earth a judicial inquiry would start to do I have no idea.
Conspiracies! Dark forces. Lies and secret states, no less. By January 2006, Howells was again reporting to MPs that all relevant Foreign Office records and recollections had been checked, implying that no proof of rendition had been discovered. Two years later David Miliband, who replaced Straw, was forced to admit that two renditions in fact did pass through the island of Diego Garcia in 2002 (Blair, pathetically: “We have just been informed by the United States of America about what has actually happened”). Suspicions were somewhat confirmed, but it was all a long time ago, and there was a change of Prime Minister, and then of government. While rendition-torture didn’t exactly go away, it faded from view. But it has resurfaced. Last month we discovered that some crucial records are incomplete due to ‘water damage’. Because if you have files pertinent to a major foreign policy controversy, why not store them that badly? Never mind that Ministers had previously argued that they wouldn’t be keeping notes anyway, and had to rely on assurances from the Americans (an “error” in US records was the culprit). Kettle logic, again.
A guest post from Lauren Wilcox, currently Charles and Amy Scharf Postdoctoral Fellow in the Department of Political Science at Johns Hopkins University. Lauren is starting a new job as a University Lecturer in Gender Studies at the University of Cambridge this fall. Her work is located at the intersections of international relations, political theory, and feminist/queer theory in investigating the consequences of thinking about bodies and embodiment in the study of international practices of violence and security. She is the author of articles in Security Studies, Politics & Gender and, most recently, International Feminist Journal of Politics. Lauren’s current book manuscript is entitled Practices of Violence: Theorizing Embodied Subjects in International Relations.
Earlier this month, the UK human rights organization Reprieve released a video in which Yasiin Bey, formerly known as Mos Def, a well-known and critically acclaimed American hip-hop artist and actor, underwent (or attempted) the force-feeding procedure undergone by hunger strikers imprisoned at Guantánamo Bay. In this five minute video, Bey dresses in an orange jumpsuit like those worn by prisoners at Guantánamo Bay, and states simply that this is the ‘standard operating procedure’ for force-feeding hunger striking prisoners. He is then shackled to a chair resembling those used to force-feed prisoners (such as those pictured below). Bey is approached and held down by two people who attempt to insert a nasogastric tube down his nasal passage way. The video shows Bey struggling against the nasogastric tube, crying out, protesting, yelling for it to stop, and ultimately the force feeding is not carried out. The video is extremely emotional and difficult to watch. After the attempted force-feeding ends, Bey struggles to describe what it feels like, describing it as ‘unbearable’. It ends as it begins, with Bey stating ‘peace’ and ‘good morning’.
For some background context, 166 prisoners remain in Guantánamo Bay: of these, 126 have been cleared for release as not posing any threat to US national security, but are still being imprisoned. To protest their treatment and indefinite confinement prisoners have engaged in hunger strikes since the prison camp opened in July of 2002, the first wide scale hunger strike reached a peak in June 2005, when between 130-200 out of approximately 500 prisoners at Guantánamo Bay began refusing food. Hunger strikes again reached a peak in the spring and summer of 2013, and are ongoing with around 100 prisoners refusing food, and of those, between 44 and 46 are being force-fed (pictured above is an image of an inmate being hauled to the medical facilities to be force-fed), a number so high that the military had to send a back-up team of medical personnel to assist with the force-feeding of prisoners. While the force-feeding of hunger strikers when virtually unnoticed in the media in 2005/6, and again in 2009, the latest months have brought renewed attention to the plight of those who have been held at Guantánamo Bay, some for over a decade, with seemingly no progress made on holding tribunals or securing release of the remaining prisoners. Prisoners have spoken out, including an op-ed published in the NY Times by Samir Naji al Hasan Moqbel entitled “Gitmo is Killing Me”. While President Obama has recently renewed his pledge to close Guantánamo Bay, and a federal judge has even more recently stated that while she had no power to stop the force-feedings, Obama could himself order the force-feedings stopped.
What are the effects of Bey’s action? Continue reading
The court is political
The smartass response goes something likes this: “Of course it’s political; what’s not political? Haven’t you read the ICTY’s website? It says clearly that the tribunal was established for explicitly political reasons, too, by the UNSC, which is political by definition.” But the smartass response is a rude interruption. The above assertive prefaces monologue, not dialogue. The monologue is a story about world politics as a dog-eat-dog contest in which the strong always devour the weak with a focus on the origins of the ICTY. “Of course an international judicial institution cannot be created on the basis of an UNSC resolution alone. Of course Chapter VII of the UN Charter does not specify the conditions under which war crimes tribunals can be set up. Of course the ICTY quickly discovered that it could not bother with the question of own legality. But when have great powers ever cared about law and institutions? Might makes right, right? The ICTY is based on the consent of states – big states, not our banana republics.”
This story varies in terms of breadth and depth, but its modal conclusion is that the tribunal cannot represent anything but “victor’s justice” and/or Western and specifically American oppression of those living on the periphery. As for the motive, the supposedly aggressive prosecution of Bosno-Serbo-Croat baddies practiced by the ICTY is a function of the desire for retribution for every case of ex-Yu insolence in recent history, starting with the Trieste crisis of 1945. As discipline and punishment at once, trials are also meant to serve as a warning to the rest of the peripheral and semi-peripheral world. This type of theorizing could be described as a cross between pop-realism and pop-Marxism with a whiff of the crudest forms of pop-anti-Americanism and some other, far less respectable prejudices. While it is not exactly a closed loop, for every new newstory indexing Western and specifically American double standards and double visions in international law, the theory gains strength. Who in the former Yugoslavia doesn’t have an informed opinion on the “Hague Invasion Act”?
The two accounts of the origins of the ICTY that I have on my shelf make something of an opposite case. Pierre Hazan’s book, subtitled ‘The True Story Behind the ICTY’, suggests that the weak (international justice activists) outfoxed the strong (realist diplomats and state-centric lawyers) and, against all odds, managed to turn the tribunal into such a revolutionary achievement (more on this below). Hazan is no theorist of norms and transnational advocacy networks, but there are more than a few parallels with this literature. The second account is Rachel Kerr’s 2004 book, which begins and ends with the thorny issue of “politicization,” including the issue of “prosecutorial discretion” as its special subset. Kerr has the ICTY walking on a tightrope. Sidle up too closely to justice, and you alienate those who rule the world; let politics in, even to manipulate it for judicial ends, and you lose credibility. While infinitely more nuanced than Hazan’s, Kerr’s framework for analyzing politics (it, too, chimes with 1990s IR theory, namely the “bringing international law back in” literature) follows the same binary – let me personify it a little as a contest between “realists” versus “legalists” – and it reaches the same conclusion. And judging by both the quotidian operation of the court as well as its key decisions up to 2002-3, Kerr finds, “legalists” had the upper hand.
I am not sure what stock-taking exercises based on the realist vs. legalist framework look like today (again, this post is my attempt to reconnect with the literature I stopped following years ago), but what struck me in my conversations is how adamant my interlocutors were in rejecting even the most carefully drawn legalist claims. It’s simple, the typical response goes, the ICTY is subject to constant political pressures and it shouldn’t be surprising to see so much judicial malpractice. Lest one is keen to dismiss this as “typical” ex-communist (and transitionalist) disdain for the notion that law serves to ensure that valuable social goods are distributed in ways that protect equal respect for everyone, note that some of the most critical arguments about the “hopelessly political court” are drawn from the texts left behind by bona fide ICTY insiders like Antonio Cassese (he of those great international law textbooks), Gabrielle Kirk McDonald, Louise Arbour, Graham Blewitt, Carla Del Ponte, Serge Brammerz, and Florence Hartmann (more below). Anyone can cherry-pick a few memorable lines from a few memoirs and journalistic accounts (Hartmann, if I recall correctly: “the ICTY was formed so that war criminals could negotiate on the level of their innocence”), but what I find interesting is that these types of arguments have gained more and more adherents over the years.
The images and scenes we discuss below are not those of a conventional film plot. Nevertheless, *spoiler warning*.
It’s hard to know how to write about The Act Of Killing, the unsettling, surreal, humanising, nauseating portrait of an Indonesian death squad that is generating such interest. Joshua Oppenheimer, Christine Cynn and the mainly anonymous Indonesian crew (anonymous for fear of retribution) have conjured something quite extraordinary into the world. Laced with caustic insights into atrocity, empathy, memory, commodification, artifice, power, solidarity, fear, self-deception and play.
One million people were killed in Indonesia in the mid-60s following a military coup. The massacres which aimed at obliterating “communists” (along with ethnic Chinese and intellectuals) have been largely undocumented, with many of the perpetrators occupying prominent positions in the Indonesian government. Without wishing to give too much away or to channel and pre-empt the multiple, contradictory emotions that it is bound to elicit, the main conceit is a film within a film where the murderers re-enact their murders, all the while debating whether to recreate this method, or whether that victim would have cried out in that way, and sometimes whether they might just be showing us too much truth in their performances of the past. At one point there is the satisfied declaration that these scenes of re-articulated horror will be seen as far away as London! Part voyeurs, part students, we are thus implicated in their narratives, viscerally. Aghast, covering our eyes, retching when they retch, laughing guiltily at moments of shared humanity.
The Act Of Killing is a deliberate move from the ‘theatre of the oppressed’ to the ‘theatre of the oppressor’, a move that is challenging not simply because we – those ostensibly passive spectators – are made to face deeply uncomfortable ‘truths’ but also because it is above all a movie that painstakingly documents what Hannah Arendt, in a different context, called the ‘banality of evil’. Whilst there is nothing anodyne or sanitised about these gruesome renactments, they are almost flippantly juxtaposed with the mundane rituals, pedestrian encounters, and even moments of compassion and kindness that make these men all too human. The result is an audience suspended between empathy and disgust, between acceptance and incredulity, and between the absurd and the quotidian.
The Act Of Killing, for us at least, is a gut-twisting manifestation of sometimes nebulous socio-political insights. Insights such as Agamben’s ‘camp’ or Foucauldian ‘state racism’: concepts that suddenly unfold themselves before us on film, embedded as they are in a context otherwise deeply unfamiliar to us. But although seemingly focused, somewhat narrowly, on Medan, Indonesia the ambit of The Act is far greater: it offers a compelling commentary on the connate imbrication of capitalism, commodification, legality, sexual discrimination, racism, and their inescapably violent manifestations. It is less a document-ary about Indonesian history than a meditation on violence, memory and subjectivity themselves, a provocation made universal precisely because of its lingering gaze on these few aged torturers.
The Nation recently ran a review of The Torture Report: What the Documents Say About America’s Post-9/11 Torture Program, by Larry Siems. The book is drawn from the online report that Siems developed from documents that the American Civil Liberties Union obtained from a series of freedom of information requests – those documents are publicly available on the site as well.
I don’t work on torture nor do I have any specialist knowledge of the US policies after 9/11, but Siems’ work looks fascinating. Not only is he using a massive collection of primary sources, but the way he assembles and analyses the material brings out the systemic use of torture and the dubious ends pursued on the bodies and minds of its victims.
Key out takes from the Nation review, written by Peter Baker:
This is oddly apt: failures of understanding are part and parcel of institutionalized torture, which seems to require a systemic aversion to detail, especially the details of other people’s experiences. The most publicly visible manifestation of this aversion was the replacement of “torture”—in both the legal memos and the pages of the nation’s leading newspapers—with terms like “enhanced interrogation.” This same preference for detached vagueness pervades The Torture Report. “Cramped confinement involves the placement of the individual in a confined space,” the administration lawyer John Yoo wrote in a 2002 memo. “The confined space is usually dark.” Depending on the size of the space, “the individual can stand up or sit down.”
Abu Zubaydah’s descriptions of his “cramped confinement,” which Siems quotes, dwell on several aspects that Yoo passes over: how a cloth was draped over his confinement box to restrict his air supply; how the box was so small he could neither sit nor stand but instead had to crouch, which caused a wound in his leg to rupture; how he was given a bucket to use as a toilet, and how it tipped over and spilled while he remained inside for hours; how he lost all sense of time. It is unclear whether Yoo left such details out intentionally, or whether they simply never occurred to him. Similarly, it’s hard to know what to make of a note written by Donald Rumsfeld in ink at the bottom of a 2002 memo on detainee treatment that, among other things, set limits on forced standing. “I stand for 8-10 hours a day,” he wrote. “Why is standing limited to 4 hours?”
America commits torture, funds torture research and encourages torture around the world. It is easy to point the finger at one particularly dark corner or another, be it the CIA or the derelict grunts on the night shift. These documents suggest that a bigger problem might be the sheer number of dark corners: American force abroad is wielded and managed by so many overlapping but distinct organizations that it creates plenty of useful ambiguity as to how, exactly, the overlap is meant to work. There’s a clear sense, especially in memos related to the early days of Guantánamo, of all these various people—Army, Navy, Air Force, CIA, FBI—wandering the cell-block halls, unsure of who is doing what, when and to whom. In the absence of a plan, everyone takes turns dealing with the detainees as he or she sees fit. The guards watch, picking up ideas from the pros for later. One could call the disarray a design flaw, but that would involve assuming that torture wasn’t part of the plan. Given that we know it was, all the confusion seems to have helped; CIA agents reveled in exploiting it, often identifying themselves as FBI agents to avoid having their presence exposed or accurately documented. Defense Department agents pulled a similar move, more than once impersonating State Department officials during torture sessions.
The spectacle of lynching, and the photos documenting that spectacle, served as a boast and a warning: look what we can do—and will. With post-9/11 detainee abuse, the exact same message is being communicated, only so too is its negation: look what we disown, what only the bad apples among us desire, and for which we will duly jail them. Endless memos dissecting torture techniques and parsing existing laws out of existence are a key part of this ritual: they insist that nothing terrible is happening. In a 2002 meeting, a military lawyer was surprisingly honest: “We will need documentation to protect us.” A CIA lawyer chimes in his agreement: “Everything must be approved and documented.”