It has emerged that the UK government has agreed to an out-of-court settlement with UK citizens and residents who were detained in Guantánamo Bay and elsewhere and who claim that the many violations of their human rights (including their right to be free from torture) that they experienced involved the collusion of UK forces (Guardian report). People who have been following the plight of UK citizens and residents in the ‘War on Terrorism’ will know that this is not the first time that attempts have been made to make the UK government responsible for their role in failing to protect—or, indeed, colluding in the violation of—these people’s rights. My fellow HRinI blogger Colin Murray has an article forthcoming in Pubic Law, which I have had the pleasure of reading in advance, in which he writes about the ways in which the UK government failed to honour the pact of allegiance with these individuals. This settlement, however, raises further questions about accountability and the ‘War on Terrorism’: is an out-of-court settlement of this kind sufficient to secure accountability on its own? When taken in its broader context can such a settlement constitute accountability?
In my view an out-of-court settlement with no admission of liability is not, on its own, sufficient to constitute a true accountability mechanisms for what appears to have been a gross failure on the part of the UK to protect its citizens and, more generally, to adhere to well-established principles of international human rights and international humanitarian law. Such a settlement arguably does one of two things: it signifies an implicit acceptance of responsibility and attempts to compensate for it (without expressly taking responsibility) or it constitutes the rational response to a juridical process that will take an estimated three years simply for discovery to be completed and may well result in serious diplomatic difficulties with a major ally (in other words, it is entered into as the cheapest, quickest and most convenient way to make the expensive, laborious and risk-laden court case go away). Neither of these actually constitute an accountability mechanism in real terms: there persists a situation in which transparency about UK involvement in alleged mistreatment is absent and no individuals or organisational structures are identified as allowing such collusion to happen, meaning that no ‘learning’ takes place by which the likelihood of a reoccurrence is minimised.
Placing this settlement in its context, however, leads one to a somewhat different conclusion. The UK government recently announced the establishment of an inquiry into UK involvement in torture. It is, in reality, through this inquiry that the transparency required by any effective accountability mechanism will be secured. The settlement can be seen as a step towards that inquiry: there was little or no point in persisting with a long and expensive discovery process (including the hearings that would then also take place about whether or not certain documents were privileged and need not be discovered for reasons of national security) when these matters are going to be aired and considered in that forum in any case. Of course, there are disadvantages to such inquiries (as we in Ireland know only too well!): they are drawn out and generally extremely expensive, there can sometimes be difficulties in compelling people to appear, numerous ‘spin out’ pieces of litigation can take place as people who appear before the inquiry try to ascertain the exact implications of their involvement and of disclosing certain information etc… However, an inquiry can at least get to the bigger picture around the policies and approaches adopted that may have allowed for the UK to become involved (whether directly or indirectly) in the use of torture in the ‘War on Terrorism’. Whether it will allow for accountability inasmuch as it will identify individuals and individual actions with whom these policy and practical failures can be identified is perhaps a more difficult question to answer, but history would indicate that one could spend a lifetime waiting for that kind of accountability (at least in the sense of criminal charges possibly being brought against such individuals).
Whether accountability requires that charges are brought or not is, however, a different question and one on which there are differing views. In my view, criminal charges are not an absolute requirement of accountability but where they are not to form part of the accountability mechanism then that must be substituted by absolute transparency including about the processes and policies that resulted in such behaviours being approved of/engaged in/colluded in. The settlement on its own does not achieve that goal, but seen in its context, may well be an important step towards such transparency although the wait is sure to be a long one.
