As an inquiry into allegations of torture and killing of civilians by the British Army in Iraq begins to hear witness testimony, Colleen Boland looks at the pluses and minuses in the practice of public inquiry.

Recently, several public inquiries in the UK have peaked interest with broad and provocative subject matter that trump the more routine investigations. Sir John Chilcot’s Iraq Inquiry purported to consider the decision-making before, during and after the Iraq War, and the Leveson Inquiry was a self-described investigation into the “Culture, Practices and Ethics of the Press”. Most recently, the al-Sweady Inquiry hit the headlines as witnesses testify to unlawful treatment and killing of Iraqi civilians in British custody near Basra.

Public inquiries have been on the rise, and legal specialists like Philip Sales suggest that inquiries are perhaps more frequent and even popular now as a direct result of the world becoming increasingly globalised. The definition of a modern state and its legitimacy is changing, and through these public inquiries the state employs a way in which it can continue to legitimise itself and discern its mandate. In other words, in modern societies, governmental accountability is demanded more than ever before.

The Practice of Public Inquiries

Public inquiries have been in practise since the 19th Century, and while they only result in the chairman issuing a report or recommendation to the government, further criminal procedures within the justice system could follow. Judicial public inquiries are an instrument of the government in that a minister of government is tasked with the responsibility of identifying whether one should take place and ordering it. They are employed in countries under the common law system modelled by Britain; though Presidential Commissions of Inquiry, held both in the US and the EU, are comparable forms of quasi-legal investigatory proceedings. The al-Sweady Inquiry is being conducted under the Inquiries Act of 2005, which grants a minister power to set up independent and formal inquiries relating to matters of public concern, surrounding events that may or may not have happened. They can be viewed as a regulatory or accountability mechanism.

The popular press, legal practitioners and scholars debate the merits of public inquiry. The extensive and transparent nature of an inquiry incurs considerable expense, and so far, al-Sweady has cost the UK taxpayer almost GBP 16 million. Essentially, inquiries are often criticized as cumbersome and expensive. A second argument holds that the witnesses who are ordered to testify, jeopardize their individual rights (i.e. in the case of an individual who could face criminal charges as a result of an inquiry). More to the point of whether a public inquiry is fit for purpose, critics will argue that rather than serving the public, inquiries often serve as a political gesture or appeasement. At the same time, defenders of the public inquiry insist it is an effective tool for transparency and ensuring public confidence.

“Battle of Danny Boy”

The al-Sweady Inquiry was ordered by the Rt. Hon. Bob Ainsworth MP, former UK defence secretary, in 2009, to address allegations that 20 Iraqis were unlawfully detained and killed in British custody in May 2004, following a fire fight between British soldiers and insurgents in Majar al-Kabir — what some call the “Battle of Danny Boy”. Further claims to be addressed  concern a further nine detainees who suffered unlawful treatment in the same camp, as well as at another detention facility. The inquiry is named after one of the UK administrative court’s original claimants, an uncle who alleges that his nephew, Hamid al-Sweady, a 19-year-old unarmed civilian, was killed in British custody.

The Ministry of Defence categorically denies the allegations, but Ainsworth admitted the necessity of further inquiry when the High Court reprimanded the MoD for an unsatisfactory disclosure of documents for a High Court hearing, addressing the allegations of five detainees and the claim of unlawful killing in 2009. The inquiry finally commenced in March 2010. Currently, the public transcripts of witness testimony are becoming available daily as the witness hearings take place.

So far, preliminary and directions hearings have taken place from March to December 2012. They have dealt with conducting administrative realities and assembling the written material and persons to give testimony. With over a thousand potential witnesses initially identified, actual signed and written statements have been narrowed down but still count in the hundreds.  The inquiry was finally prepared to hear evidence in March 2013, beginning with the eponymous Hamid al-Sweady. Three other Iraqis have given evidence since, two of which include detainees. The Iraqi witnesses are scheduled as first to give testimony, with witnesses from the British military and any other relevant witnesses to follow. The evidence has graphically described disfigured and dismembered bodies and confusing, terrifying combat.

It has been over three years since preliminary hearings for the al-Sweady Inquiry began, and it is still in the first stage of investigations, to be followed by the second and third stages of report and recommendation by Inquiry Chairman Sir Thayne Forbes. It has been almost nine years since the alleged events took place. While the inquiry has employed a team of police investigators and procured witness testimony from all nine Iraqi detainees and British troops, the hope for a revealing investigation is diminished. As witnesses have begun to give oral testimony, the press already describes “discrepancies” in evidence. In particular, they highlight the changing story of the father of one of the killed Iraqi nationals. To be sure, it is certain that nine years after the incidents, memories are imperfect and fade. Furthermore, at this stage, it will be impossible to corroborate witness testimony with hard evidence.

The lawyers cross-examining the witnesses will be less interested in producing a comprehensive picture of events than in seeking out flaws in testimony and areas of ambiguity, as their profession duly demands. Further examples of this abound, as Mahdi al-Behadili, 18 at the time of the event, explains how he lied about his whereabouts when being questioned in May 2004 out of fear. Helater omitted describing one injury in his testimony in a 2008 witness statement for the High Court hearing, but was telling the truth in full for the al-Sweady Inquiry’s cross examination. Legal representation for the Ministry of Defence point out al-Behadili’s inconsistency and lack of credibility — a valid argument, but an unsympathetic one in light of the confusion and realities of war.

Given the difficulty of reaching conclusive decisions under the British legal system, it could be argued that the British government is conducting the inquiry merely to appease those affected, undergoing a futile and artificial exercise. Still, the allegations against the British Army of murder and torture are grave and deeply disturbing. Either way, it seems that it is in the interest of the British public to investigate the claims as fully as possible. If they are true, the public inarguably should know. If they are false, the public suffers under the weight of the false accusations. While a public inquiry may be criticized as an expensive endeavour, the due process of law is a luxury enjoyed by a free and democratic society. As the UK itself represents such a free and democratic society, it owes it to its own citizenry, the Iraqi claimants and the world to set an example and engage in this process.

The views expressed in this article are the author's own and do not necessarily reflect Fair Observer’s editorial policy.

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