international law,

A Right to 'Truth' on the War on Terror


By Narjis Khan Feb 02, 2016
Dear Editor,

One of the most disturbing features of the “War on Terror” is Guantanamo Bay. At the end of October 2015, Shaker Aamer, the last UK citizen detained there, was finally released and allowed to reunite with his family, after 14 years of incarceration without charge.

As a lawyer committed to the principle of the rule of law and the protection of human rights through the UK and European court systems, I wondered how long it would be before Mr Aamer took legal action against the UK Government for complicity in his torture. We’ve already seen several cases at the European Court of Human Rights regarding British violations in the Iraq war. For example, in Al-Skeini, 1it was alleged that five Iraqi citizens were killed by British troops in the UK-occupied Basra; the sixth victim was arrested by British troops and taken to a UK detention facility where he was allegedly mistreated and killed. In Al-Jedda, 2 the applicant was detained at a British-run detention facility in Iraq for over 18 months. It seemed only natural to me that, having suffered so much and for so long, Shaker Aamer would also wish to take legal action against the UK government, in the same way that others have in the past.

I was surprised, therefore, when Shaker Aamer announced that he would not take legal action against the UK government. He said during an interview with the BBC, “I do not want to prosecute anybody. I do not want anybody to be asked about what his role [was] in the past. I just want people to tell the truth.” 3 The right to the truth is not something contained in the UK Human Rights Act 1998, nor in the European Convention on Human Rights. Yet there is something very human, basic and powerful about simply wanting to know “the truth”. Indeed, courts in other jurisdictions have been more forthcoming in engaging with this concept before. The “Cotton Fields” case, 4 heard by the Inter-American Court of Human Rights in 2009, ruled on Mexico’s alleged responsibility for the disappearance and subsequent death of three women, whose bodies were found in a cotton field in Mexico. The Court found that “the absence of a complete and effective investigation into the facts constitutes a source of additional suffering and anguish for the victims, who have the right to know the truth about what happened. This right to the truth requires the determination of the most complete historical truth possible, which includes determination of the collective patterns of action, and of all those who, in different ways, took part in said violations.” 5 The Court then ordered Mexico to effectively conduct the criminal proceedings that were underway as well as, inter alia, to remove barriers to the investigation of the facts and to publish the results of the proceedings, “so that Mexican society is aware of the facts that are the purpose of the instant case.”6

At the UN level, the right to truth has also been recognised. In 2008, the Human Rights Council adopted Resolution 9/11, in which it requested the Office of the United Nations High Commissioner for Human Rights (OHCHR) to prepare a comprehensive study on best practices for the effective implementation of the right to the truth. 7 In September 2011, the Human Rights Council adopted Resolution 18/7, by which it appointed a Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence for a period of three years. 8 This was extended for a further three years in 2014.

The relationship between truth and justice seems to be a natural one, and as we have seen, the Inter-American Court of Human Rights and the United Nations had explicitly endorsed this concept. As such, one way of looking at Shaker Aamer’s decision not to take legal action is that victims of human rights abuses don’t feel that the UK courts and possibly also European courts are an appropriate vehicle for addressing their grievances. Whilst legal action inevitably involves establishing facts as a way of understanding what happened, the extent to which this process enables “the determination of the complete historical truth” and the “determination of the collective patterns of action, and of all those who, in different ways, took part in… violations” is questionable, especially where one of the parties is the Government. 9 Within the UK jurisdiction and on the European level, there seems to be a tendency to use monetary compensation as the mechanism for achieving justice. However, the understanding of “the truth” is clearly as important to victims of human rights abuses, as evidenced by Shaker Aamer. Similarly, in the Belhaj case, concerning the alleged involvement of UK State agents and agencies in the unlawful detention and mistreatment of two Libyan nationals, the claimants only sought £1 each from the defendants but insisted on the UK government unequivocally admitting its liability.10

Therefore, perhaps courts at the domestic and regional level in Europe could take some lessons from other jurisdictions, where the desire for people to “tell the truth” and for that “truth” to be made public is recognised and embedded within the legal setting.

Yours faithfully,
Narjis Khan

LLM student

LSE



[1] Al-Skeini and Others v UK (2011) 53 EHRR 18.

[2] Al-Jedda v UK (2011) 53 EHRR 23.

[3] ‘Shaker Aamer: “No plans to sue” over Guantanamo’ (BBC News, 14 December 2015) «http://www.bbc.co.uk/news/uk-35089908» accessed 19 January 2016.

[4] González (“Cotton Field”) v. Mexico (2010) 49 ILM 637.

[5] Ibid para 454.

[6] Ibid para 455.

[7] Report of the Office of the High Commissioner for Human Rights, ‘Right to the Truth’ (2009) UN Doc A/HRC/12/19 «http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-19.pdf».

[8] Resolution Adopted by the Human Rights Council, ‘Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence’ (2011) UN Doc A/HRC/RES/18/7 «http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/G11/166/33/PDF/G1116633.pdf?OpenElement».

[9] González (“Cotton Field”) v. Mexico (2010) 49 ILM 637 para 454.

[10] ‘Abdul-Hakim Belhaj and Fatima Boudchar’ (Reprieve) «http://www.reprieve.org.uk/case-study/abdul-hakim-belhaj» accessed on 20 January 2016.

Article by Narjis Khan
LLM (Public International Law) (London School of Economics and Political Science) ‘16