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Chapter 2

       The Legal Recognition of Torture Survivors

      This chapter explores the conditions under which torture survivors gain legal recognition. In doing so, it examines the ways in which legal techniques prioritize and distinguish between different types of victim and the accounts they can give of themselves. Torture survivors are often, formally at least, singled out for specific attention, as deserving of particular respect for what they have suffered. The campaigns of the anti-torture movement have been at least partially successful in having the protection for torture survivors codified into law. In the United States, people fleeing torture are granted protection under immigration laws, and the Torture Victim Protection Act of 1991 allows torture survivors to litigate for civil damages from perpetrators no matter where the torture occurred.¹ In the United Kingdom, there has been a long-standing attempt to pass similar legislation, in the form of the Torture Damages Bill. However, the vast majority of claims about torture in UK courts are made during asylum procedures. Although not singled out in the 1951 Refugee Convention, torture, with a few notable exceptions, will nearly always qualify as a form of persecution. Perhaps more important, the Human Rights Act 1998, by making the European Convention on Human Rights, and more specifically its Article 3, enforceable in English courts, explicitly extends protection to victims of torture.² The UK Border Agency has also given torture survivors special status in its assessment of claims for protection.³

      The legal processes of recognition are seen by some critics as transforming fundamentally political issues into a form of passive victimhood. Wendy Brown, for example, has argued that rights “fix the identity of the injured … (and) codif[y] … the meanings of their actions against all possibilities of indeterminacy, ambiguity” (1995, 27). However, such arguments are in danger of creating too rigid, neat, and precise a picture, ignoring the ambiguity and indeterminacy of legal processes. They also ignore the ways in which victimhood is never taken for granted, and claims are always subject to second-guessing. Refugees in Europe and North America are widely said to face a “culture of disbelief.” In the 1970s, refugees were largely portrayed as heroic figures fleeing from oppression in Chile, Argentina, or Southeast Asia; by the 1990s, however, the popular press and much political rhetoric has portrayed them as self-serving and duplicitous. As Didier Fassin and Estelle d’Halluin have argued, writing in the context of France, “feelings of solidarity and compassion gave way to suspicion often mixed with racist prejudices” (2007, 309–10).

      The central argument of this chapter is that the legal recognition of torture survivors is not so much a technical process of codification but a series of unstable judgments played out on the boundary between fact and law. The processes of legal assessment mean that the recognition of torture survivors can be unpredictable and erratic. Despite their formal legal and administrative protections, the crucial issue for the vast majority of people claiming protection as torture survivors is not law but evidence. Most cases fall on issues of credibility. Put simply, torture survivors are not believed. Far from being treated as passive and fragile victims, those claiming protection are seen by immigration officials and judges as active agents who are always capable of manipulation.

      In a context of generalized suspicion around people claiming asylum, legal processes provide a technique for assessing claims and thereby trying to move from uncertainty to a measure of certainty. In particular, attempts to produce legal certainty are filtered through rules of evidence. There is a relatively low standard of proof in asylum and human rights claims. In the United Kingdom, criminal claims have to be proved “beyond reasonable doubt” and civil cases on the “balance of probabilities,” but claims for asylum and humanitarian protection are formally decided on a standard of “reasonable likelihood.”⁴ Furthermore, the United Nations High Commissioner for Refugees (UNHCR) Handbook says that applicants, “unless there are good reasons to the contrary, be given the benefit of the doubt” (1992, para 196). Yet, in practice, many lawyers argue that they actually find it hardest to prove an asylum claim and easiest to get a criminal conviction. There has been a de facto, if not officially recognized, increase in evidential requirements, and although no corroborative evidence is formally required, in practice tribunals are asking for ever higher levels of proof.

      Claims for recognition as torture survivors take place in a context where evidence is inherently scarce. It is often very difficult for claimants to provide any evidence at all, apart from their own testimony. According to one Canadian immigration decision-maker, “We rarely even have as much information as I would consider necessary to choose a new appliance, much less make a decision about a person’s future” (Maklin 2007, 1103). Lawyers must therefore present often-fragmented cases in a way that makes them seem credible and plausible. However, judges are well aware that all evidence is a human construct, and they are always looking for motivations behind the evidence. The lower standard of proof and relatively relaxed rules of evidence in asylum cases can make cases less predictable. Virtually anything can be submitted as evidence, but judges have no solid standards against which to assess it. Without firm rules of evidence, there is a constant switching between treating claims at face value and looking behind them for forms of dissimulation, a focus on formal legal proof and a wider concern with “what really happened.” In all legal judgments, recognized uncertainty has to be transformed into practical certainty (Good 2007; Latour 2004). Yet, in the asylum process, the path from uncertainty to certainty is shot through with hesitations and doubts. There is, of course, always an element of chance in all legal proceedings, and no lawyer can predict with certainty which way a particular case will go. However, in asylum and human rights cases uncertainty over the facts is accentuated. It is not simply that judges are skeptical about claimants, but rather that they have no solid ground on which to decide to be skeptical.

      This chapter focuses on a single claim by an Iranian male. It views the process from the perspective of the lawyers, bureaucrats, and judges who have to assess and process the claim. The chapter follows this individual case, from initial submission to final appeal, in order to examine the practical issues of evidence and legal argument involved in the recognition of torture. The case is reconstructed following interviews with the lawyers and attendance at the case hearing, as well as with analysis of the case documents. My research also included following an additional thirty-five claims from start to finish. Formally, assessments in refugee and human rights cases are about judgments of future risk. However, the first step to having a claim accepted is most often making a claim of past persecution or torture. This chapter will therefore focus on the attempt to prove past events. Judgments about future risk will be covered in Chapter 4.

       Applying for Asylum

      In the spring of 2009, Ali Khalili, a thirty-year-old Iranian male, arrived in the United Kingdom. Within three days, he had claimed asylum. Describing himself as a farmer and an atheist, Khalili said he had been accused in Iran of evangelizing Christianity, drinking alcohol, and insulting Islam. He told the British immigration official with whom he lodged the claim that he had been tortured by the Ettelaat, the Iranian intelligence service, before managing to escape to the United Kingdom. Khalili was given a cursory screening interview when he made his initial claim, but he was not interviewed in depth until one month later, when he was questioned by a UK Border Agency official through a Farsi interpreter. The official went through a set of questions about what had happened to Khalili, why and how he had left Iran, and why he did not want to go back. The interview was led by the immigration official, focusing on the questions that he deemed important, giving little space for Khalili to explain what he thought was most relevant.

      The British immigration official asked Khalili how he was arrested. Khalili explained that three months previously, the Ettelaat had come to his family home at night and searched his room before detaining him. The official then suddenly changed topic and asked Khalili

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