Listening for Silence

Abstract

Silence is a method of torture in Saydnaya Military Prison. Lawrence Abu Hamdan, audio investigator and artist, interviewed former prisoners as part of investigations into the detention facility by Amnesty International and Forensic Architecture. Abu Hamdan heard testimony of torture that would neither be admissible in a law court nor appear in the news media. In response he created several works of art for which he was jointly awarded the Turner Prize in 2019. The artworks invite a critical examination of the basis on which the law of evidence enables testimony to be evaluated and excluded from legal trials. The world is assumed by the law to be comprised of people, objects and words that are ontologically discrete, and which exist independently from each other. The extent of the participation of the law in the way in which the world is constituted by mutually implicated practices of knowing and becoming is overlooked. There is inadequate engagement with the significance of the processes of legal systems for the outcomes of trials. By contrast, the work of Abu Hamdan opens encounters with a world in which subject and object are co-constituted through material and discursive entanglements. His art is an invitation to listen for the silences of others and the sounds of the law.

Keywords:

• law
• forensics
• evidence
• art
• Abu Hamdan
• Syria
• torture
• silence

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Constantine Cavafy, The Footsteps, trans. Edmund Keeley and Philip Sherrard.

2 Margaret Davies, “Exclusion and the Identity of Law,” Macquarie Law Journal 5 (2005): 10.

3 Amnesty International and Forensic Architecture, Explore Saydnaya: Inside a Syrian torture prison. August 2016. Available at https://saydnaya.amnesty.org/ (accessed April 14, 2020).

4 Explore Saydnaya, https://saydnaya.amnesty.org/en/saydnaya.html.

5 Lawrence Abu Hamdan interviewed by Ellen Grieg. Chisenhale Interviews: Lawrence Abu Hamdan, 2 https://chisenhale.org.uk/wp-content/uploads/Chisenhale-Interviews_Lawrence-Abu-Hamdan.pdf.

Accessed 14 April 2020 (Chisenhale Interviews).

6 Terence Anderson and David Schum, and William Twining, Analysis of Evidence. 2nd ed. (Cambridge: Cambridge University Press, 2005), 291.

7 Karen Barad, “Posthumanist Performativity: Toward an Understanding of How Matter Comes to Matter,” Signs 28, no. 3 (2003): 811.

8 Karen Barad, Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter and Meaning (Durham, NC and London: Duke University Press, 2007), 133.

9 Barad, Meeting the Universe Halfway, 87.

10 Donald Nicolson, “Truth, Reason and Justice: Epistemology and Politics in Evidence Discourse,” Modern Law Review 57, no. 5 (September 1994): 726–44, 729 makes the point that understood in terms of the rationalist tradition legal efforts to establish what happened in the past proceed on the basis that there is such a thing as an objective reality which can be discovered, and which exists independently of human knowledge. However, it does not necessarily follow that the underlying rationale of an adversarial trial is to establish the objective truth. Unfortunately, there isn’t the scope to discuss in detail the various perspectives on the issue. However, it is worth referring to Jenny McEwan, Evidence and the Adversarial Process: The Modern Law (Oxford: Hart, 1998), 5 quoting Jackson, “Two Methods of Proof in Criminal Procedure,” 51 MLR 1988: 249 who refers to the plea of guilty as an example that at trial the concern is not to establish the truth as such given that “adversary procedure is not concerned with the material facts but only the truth of facts put in issue by the accused.”

11 Barad, Meeting the Universe Halfway, 185.

12 Richard May and Marieke Wierda, International Criminal Evidence (Ardsley, NY: Transnational Publishers Inc, 2002), 166.

13 This article adopts a broad conception of the field of international criminal justice as outlined by Paul Roberts, “Why International Criminal Evidence?” In Innovations in Evidence and Proof: Integrating Theory, Research and Teaching (Oxford and Portland, Oregon: Hart, 2007). For the reasons he outlines, the field is salient to “Evidence teaching and scholarship” 349. As such, references to the law of evidence in this article will be focussed on the rules of international criminal evidence, whilst also having relevance for the law of evidence in general.

14 Saydnaya (the missing 19db) at 5:34. A SoundCloud audio recording only is available of Saydnaya (the missing 19db) at https://soundcloud.com/mor-charpentier/saydnaya-the-missing-19db-2016 (accessed April 8, 2020). Abu Hamdan explains the focus on the whispering instead of “the beatings and all the horrendous things that were done to them that you can read about in the Amnesty International report” was in order to engage with questions about, and the implications of, silence. In the context of discussing silence as both a form of resistance and suppression, Abu Hamdan has described the work as “an experiment in listening that asks: are we satisfied with saying that no forms of representation are adequate?” (Chisenhale Interviews, 3).

15 Chisenhale Interviews, 3.

16 Amnesty International, Human Slaughterhouse: Mass Hangings and Extermination at Saydnaya Prison, Syria. 7 February 2017, Index: MDE 24/5415/2017, 9. Available at https://www.amnesty.org/en/documents/mde24/5415/2017/en/ (accessed April 8, 2020), 16.

17 Amnesty International, Human Slaughterhouse.

18 Human Slaughterhouse, 11 cites the Independent International Commission of Inquiry on the Syrian Arab Republic, Out of sight, out of mind: Deaths in detention in the Syrian Arab Republic, February 2016 and also Without a trace: Enforced disappearances in Syria, December 2013.

19 Human Slaughterhouse, 12 and the report also cites Amnesty International, Between prison and the grave: Enforced disappearances in Syria (Index: MDE 24/2579/2015).

20 Human Slaughterhouse, 12.

21 Human Slaughterhouse, 12 and the report also cites Amnesty International, It breaks the human: Torture, disease and death in Syria’s prisons (Index: MDE 24/4508/2016).

22 Amnesty International and Forensic Architecture, Explore Saydnaya.

23 Chisenhale Interviews, 3.

24 Lawrence Abu Hamdan website, http://lawrenceabuhamdan.com/ (Accessed April, 14 2020).

25 Lawrence Abu Hamdan interviewed by Ayisha De Lanarolle, Turner Prize 19, 29 (Turner Prize Interview).

26 Chisenhale Interviews, 3.

27 Turner Prize Interview, 29.

28 Chisenhale Interviews, 3.

29 Saydnaya (the missing 19db) at 8:06.

30 Saydnaya (the missing 19db) at 8:30.

31 Chisenhale Interviews, 4.

32 Ibid., 3.

33 Human Slaughterhouse, 7.

34 Barad, Meeting the Universe Halfway, 172.

35 Human Slaughterhouse, 44.

36 May and Wierda, International Criminal Evidence, 8–11.

37 Ibid., 102.

38 Human Rights Watch, “If The Dead Could Speak: Mass Deaths and Torture in Syria’s Detention Facilities,” December 2015, https://www.hrw.org/sites/default/files/report_pdf/syria1215web_0.pdf and see Human Slaughterhouse, 12.

39 A Report into the credibility of certain evidence with regard to Torture and Execution of Persons Incarcerated by the current Syrian regime, https://www.carter-ruck.com/images/uploads/documents/Syria_Report-January_2014.pdf (Accessed April, 14 2020). In brief, in legal trials witnesses are evaluated in terms of their credibility and reliability. The reliability of a witness relates to the accuracy of the testimony given, whereas credibility concerns the witness’s veracity.

40 Tim Hayward, Professor of Environmental Political Theory, has commented on his personal blog, in a post titled, “Caesar’ evidence for atrocities in Syria: what does justice require?,” that in the Western media the interpretation of the images – by what he refers to as the “Qatari-sponsored prosecution team” – went largely unchallenged and so became widely accepted by public opinion. Hayward observes that Dan Murphy “particularly effectively” commented on the influence of this specific interpretation of the so-called Caesar evidence. Available at https://timhayward.wordpress.com/2019/04/04/caesar-evidence-for-atrocities-in-syria-what-does-justice-require/ (accessed December 20, 2020).

41 The Christian Science Monitor, ‘Syria ‘smoking gun’ report warrants a careful read’ January 21, 2014, https://www.csmonitor.com/World/Security-Watch/Backchannels/2014/0121/Syria-smoking-gun-report-warrants-a-careful-read#

42 Melanie Klinkner “Proving Genocide?: Forensic Evidence and the ICTY,” Journal of International Criminal Justice 6 (2008): 449 quoting Blewitt, “The Role of Forensic Investigations in Genocide Prosecutions before an International Criminal Tribunal,” Medicine, Science and the Law 37 (1997): 284–8, at 284.

43 Klinkner, Proving Genocide?, 455 quoting Rothman, “A Dissenting View on the Scientific Ethos,” The British Journal of Sociology 23 (1972): 102–8, at 102.

44 Klinkner, Proving Genocide?, 454 citing the Royal Commission on Criminal Justice, ‘The Role of Forensic Science Evidence in Criminal Proceedings.’

45 Klinkner, Proving Genocide?, 456.

46 Klinkner, Proving Genocide?, 452 citing Skinner and Sterenberg, “Turf Wars: Authority and Responsibility for the Investigation of Mass Graves,” Forensic Science International 151 (2005): 221–32.

47 Klinkner, Proving Genocide?, 453 makes reference to the principle that “justice delayed is justice denied,” which makes the time elapsed both before and during investigations and trials critical.

48 Klinkner, Proving Genocide?, 453.

49 Rowan Moore, ‘Forensic Architecture: detail behind the devilry,’ Sun 25 Feb 2018 08.00 GMT The Guardian, Available at https://www.theguardian.com/artanddesign/2018/feb/25/forensic-architects-eyal-weizman (accessed April 14, 2020).

50 Rowan Moore, “Forensic Architecture: Detail Behind the Devilry”

51 Lee Loevinger, “Facts, Evidence and Legal Proof,” Cas. W. Res. L. Rev 9 (1958): 155 and further that, “All that is available by way of data for the task is the report that individuals can give of the present state of their recollection of past observation and whatever record may be contained in existing documents and, occasionally, other things.”

52 Nicolson, Truth, Reason and Justice, 736 critiques mainstream evidence discourse, including “complacent fact positivism,” and has argued that “relevance thus helps to filter out facts which might challenge the politics of existing law.”

53 May and Wierda, International Criminal Evidence, 109 point out that there is discussion as to whether reliability is a separate or inherent component of admissibility. The decision is significant because a decision on admissibility is made in isolation. If evidence is admitted, with reliability being a matter going to the weight of the evidence, then it is evaluated in the context of all the trial evidence.

54 Nicolson, Truth, Reason and Justice, 727.

55 James Parker, “Forensic Listening in Lawrence Abu Hamdan’s Saydnaya (The Missing 19db)”, Index Journal 2 (2020): 158. Available at http://index-journal.org/issues/law (accessed October 10, 2020).

56 Chisenhale Interviews, 3.

57 Lawrence Abu Hamdan website, http://lawrenceabuhamdan.com/#/sayadna/ (accessed April 14, 2020).

58 Barad, Meeting the Universe Halfway, 390.

59 Nicolson, Truth, Reason and Justice, 728. A very small selection of other scholarship relevant to what Nicolson, 727 refers to as issues of “truth, reason, and justice” includes Loevinger, “Facts, Evidence and Legal Proof” as well as, John D Jackson, “Analysing New Evidence Scholarship: Towards a new conception of the Law of Evidence,” Oxford Journal of Legal Studies 16, no. 2 (Summer 1996): 309–28; and Michael L Siegel, “Pragmatic Critique of Modern Evidence Scholarship,” Northwestern University Law Review 88, no. 3 (1993–1994): 995–1045.

60 Parker, Forensic Listening, 161. As Parker also points out, the claim of a “mass murder that can be measured in whispers” wouldn’t be accepted in a trial.

61 In Saydnaya (the missing 19db) those interviewed explain how the surrounding environment during and after incarceration affected both their voices and hearing.

62 Saydnaya (the missing 19db) at 5:55 to 6:24.

63 Turner Prize Interview, 30.

64 Barad, Posthumanist Performativity, 812.

65 Chisenhale Interviews, 3.

66 May and Wierda, International Criminal Evidence, 333.

67 Barad, Meeting the Universe Halfway, 41. Approached in such terms, understanding reality is a framed in epistemological terms. By contrast, Barad, 133 argues for a performative approach, which “insists on understanding thinking, observing, and theorizing as practices of engagement with, and as part of, the world in which we have our being.” It is in these terms that I propose Abu Hamdan’s work invites auditor audiences to engage with evidence.

68 Barad, Posthumanist Performativity, 804.

69 Christian De Vos, “Investigating from Afar: The ICC’s Evidence Problem,” Leiden Journal of International Law 26, no. 4 (December 2013): 1010 refers to the way the ICC is imagined as introducing “transnational justice,” and that the “attendant presumption is that the ICC should remain, or be perceived to remain, at a distance from the social and political lives of the conflicts in which it intervenes.”

70 De Vos, Investigating from Afar, 1009 and more specifically the spatio-temporal distance between the conflict and those investigating is understood to “offer the possibility for institutions like the International Criminal Court (ICC)” (1010) the possibility of delivering impartial justice with an “elite corps of investigators, prosecutors, and judges” (1010)

71 De Vos, Investigating from Afar, 1010 quoting Simpson 2007.

72 De Vos, Investigating from Afar, 1010.

73 De Vos, Investigating from Afar, 1020 comments, “The price of this interest in impartiality, or at least its appearance, has undoubtedly compromised the quality of OTP investigations.”

74 May and Wierda, International Criminal Evidence, 103.

75 Caianiello, First Decisions on the Admission of Evidence at ICC Trials, 403. Also see May and Wierda, International Criminal Evidence, 115 and see for example the relaxation of the hearsay rule.

76 Barad, Posthumanist Performativity, 813.

77 Ibid., 804.

78 May and Wierda, International Criminal Evidence, 168.

79 Ibid., 168.

80 The Prosecutor v. Mathieu Ngudjolo, Judgement Pursuant to Article 74 of the Statute, ICC 01/04 -02/12, T.Ch. II, 18 December 2012 quoted in De Vos, Investigating from Afar, 1020 and fn 77.

81 After SFX, which engages with the history of how the sound of the subsidence into which the Oosthuizens disappeared was heard in terms of the “’remembered experience of the Great Trek, when white settler colonialists, their forebears originally from the Flemish lowlands […] in search of a New Jerusalem’ Rosalind Morris. The Miner’s Ear.”

82 Oliver Wainwright, “‘The Worst Place on Earth’: Inside Assad's Brutal Saydnaya Prison,’ The Guardian, August 18, 2016, 00.01 BST Last modified on Mon 30 Sep 2019 10.21 BST, https://www.theguardian.com/artanddesign/2016/aug/18/saydnaya-prison-syria-assad-amnesty-reconstruction.

83 Charlotte Higgins, “Silence or Death: Turner Finalist Lawrence Abu Hamdan on Recreating a Horrific Syrian Jail,” The Guardian, October 1, 2019, 06.00 BST Last modified on Mon 20 Apr 2020 15.24 BST, https://www.theguardian.com/artanddesign/2019/oct/01/silence-or-death-turner-finalist-lawrence-abu-hamdan-on-recreating-a-horrific-syrian-jail.

84 Charlotte Higgins, “Silence or Death: Turner Finalist Lawrence Abu Hamdan on Recreating a Horrific Syrian Jail”

85 Chisenhale Interviews, 4.

86 Ibid.

87 Artforum, “Interview: Lawrence Abu Hamdan,” November 27, 2018, https://www.artforum.com/interviews/lawrence-abu-hamdan-discusses-working-with-a-threshold-of-perception-77774

88 Chisenhale Interviews, 4.

89 Ibid.

90 Ibid., 6.

91 After SFX.

92 Ibid.

93 Ibid.

94 Ibid.

95 Ibid.

96 May and Wierda, International Criminal Evidence, 168. The authors refer to Trial Chambers generally, which may include, for example, those of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia.

97 May and Wierda, International Criminal Evidence, 168-9 quoting from The Prosecutor v Anto Furundžija (Trial Judgement), IT-95-17/1-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 10 December 1998 at paragraph 109. Also see the case, for example, of Kunarać et al. that involved mass rapes, in which it was recognised that survivors might have difficulties remembering particular details but this did not “necessarily destroy their credibility as to the essence of the events” 168.

98 After SFX.

99 Ibid.

100 Roberts, “Why International Criminal Evidence?,” 371.

101 Nicolson, Truth, Reason and Justice, 734 and see also fn 51.

102 Nicolson, Truth, Reason and Justice, 735 and Roberts, Why International Criminal Evidence?, 374 illustrates this point in terms of what is regarded as implausible using the case Prosecutor v Tadic.

103 Barad, Meeting the Universe Halfway, 58. This issue may be approached in terms of the ‘equality of arms’ between the parties. As May and Wierda have pointed out, exactly what this means is contested, but the interpretation taken by the Human Rights Committee and the European Court of Human Rights is that it involves the entitlement to procedural equality between the parties, 266. Also see Michele Caianiello, “First Decisions on the Admission of Evidence at ICC Trials: A Blending of Accusatorial and Inquisitorial Models?,” Journal of International Criminal Justice 9 (2011): 388 fn. 8 where she mentions some of the extensive relevant literature.

104 Parker, Forensic Listening, 162.

105 May and Wierda, International Criminal Evidence, 333.

106 May and Wierda, International Criminal Evidence, 334 and for other examples of types of evidence that may be excluded from being produced in court, 335.

107 Roberts, Why International Criminal Evidence? 366 where he refers to the International Criminal Court, International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda.

108 May and Wierda, International Criminal Evidence, 335. As pointed out by McEwan, Evidence and the Adversarial Process, 1 the distinction between inquisitorial and adversarial systems has been described as “simplistic,” but although it’s difficult to find any pure examples of either category, the “essence” of inquisitorial systems is “that the state is interested in the outcome and wishes an investigator to discover as many relevant facts as possible,” 3.

109 May and Wierda, International Criminal Evidence, 334.

110 Ibid., 336.

111 May and Wierda point out that fundamental to the fairness of international criminal trial is the right “to examine, or have examined the witnesses against him” but that this is not the same as the right to cross-examine during trial, International Criminal Evidence, 284.

112 May and Wierda, International Criminal Evidence, 329.

113 May and Wierda, International Criminal Evidence, 167. Other factors include consistency with prior statements made by the same witness; credibility when measured against other evidence; and any possible ulterior motives.

114 May and Wierda, International Criminal Evidence, 337. The authors go on argue that the lack of exclusionary rules regarding evidence at trial does not affect the fairness of the proceedings, 338.

115 Klinkner, Proving Genocide?, 464. Also see Roberts, Why International Criminal Evidence? 366. However, as pointed out by Nicolson in Truth, Reason and Justice, 727, “many rationalists regard the adversarial system as the best method for ascertaining the truth, whereas others regard the two as fundamentally incompatible.”

116 Barad, Meeting the Universe Halfway, 55.

117 Ibid., 390.

118 After SFX.

119 After SFX. Also refer to Turner Prize Interview 29–30. Instead of barriers to his investigation, Abu Hamdan treated the audibility of whispers and other “cross-sensory leakages” as evidence whilst observing that they are “defined juridically as ‘evidence of absence,’ and conventionally considered to be a weak source of legal evidence.”

120 After SFX.

121 Ben Anderson, Encountering Affect: Capacities, Apparatuses, Conditions (Surrey, UK and Burlington, VT: Ashgate, 2014), 56

122 Chisenhale Interviews, 3.

123 Chisenhale Interviews, 3. At the same point in the interview Abu Hamdan encapsulates matters when he describes how the silence in Saydnaya “became this extremely physical thing. It was a way to measure exactly how limited the space of incarceration was but in a totally different way.”

124 After SFX.

125 Ibid.

126 Human Rights Watch, If The Dead Could Speak.

127 Anderson, Encountering Affect, 50–1.

128 Anderson, Encountering Affect, 51–3 and at 55 citing Farber, Harlow, and West, “Brainwashing, Conditioning, and DDD (Debility, Dependency, and Dread),” Sociometry 20, no. 4 (1957).

129 Barad, Posthumanist Performativity, 824–5.

130 Ibid., 804.

131 Ibid., 812.

132 Barad, Meeting the Universe Halfway, 390.

133 Barad, Meeting the Universe Halfway, 91 and see also the discussion at 390–1.

134 Barad, Meeting the Universe Halfway, 139.

135 Barad, Posthumanist Performativity, 813.

136 After SFX.

137 Ibid.

138 Klinkner, Proving Genocide?, 460.

139 Tate Interview, 30.

140 Chisenhale Interviews, 3.

141 Barad, Meeting the Universe Halfway, 87.

142 Nicolson, Truth, Reason and Justice, 731. In relation to the problematic aspect of an external, objective standpoint see Barad, Meeting the Universe Halfway, 49 and also see 184.

143 Barad, Meeting the Universe Halfway, 390.

144 Ibid., 183.

145 Barad, Meeting the Universe Halfway, 139. The use of the intra-actions rather than interactions is used here to follow Barad, who points out the latter term, “presumes the prior existence of independent entities or relata,” 139. As Barad explains, “Intra-actions include the larger material arrangement (i.e., set of material practices) that effects an agential cut between ‘subject’ and ‘object’ (in contrast to the more familiar Cartesian cut which takes this distinction for granted),” 139-40.

146 Chisenhale Interviews, 4.

147 Barad, Meeting the Universe Halfway, 181.

148 Ibid., 179.

149 Barad, Posthumanist Performativity, 812.

Additional information

Notes on contributors

Jeremy Pilcher

Jeremy Pilcher is a lecturer in law at New York University (London) where he is also the Law Programme Co-ordinator. His research explores intersections between art and law. Jeremy’s work builds on academic qualifications in cultural research, art law and art history as well as his professional experience as a lawyer and fraud investigator. He began his legal career in New Zealand as a criminal prosecutor before working in commercial litigation. After moving to England, he qualified as a solicitor and worked in both the public and private sectors investigating fraud in companies. His other roles have included reviewing for journals in law, museum studies, and organisation theory. Jeremy is a member of the Co-ordination Group of the Art/Law Network and is on the Programme Committee of the annual conference, Electronic Visualisation and the Arts. Most recently he edited the book, Culture, Technology, and the Image, which explores the technologies deployed when images are archived, accessed and distributed. The book engages with the ways in which habits and techniques used in learning and communicating knowledge about images are affected by technological developments.