19 October, 2012

Fourth Baha Mousa Memorial Lecture - Iraq - Unlawful treatment of detainees "institutional"

Baha Mousa
The Torture Convention:

The United Kingdom is a signatory to the United Nations Convention against Torture or other cruel, inhuman or degrading treatment or punishment (the "torture convention").  The terms of the Convention are clear enough:

 Article 2
  1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
  2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
  3. An order from a superior officer or a public authority may not be invoked as a justification of torture. 
The UN Special Rapporteur on Torture spoke at Chatham House on 10th September - "Enforcing the absolute prohibition against torture." and also note the comments at International Law Bureau

The UK government demonstrated unwillingness to offer the protection of the European Convention on Human Rights to those either killed or detained by British troops in Basra, Iraq at a time when the UK was an "occupying power."  This was the subject of judgments against the UK by the European Court of Human Rights - Al-Skeini and others v UK and Al-Jedda v UK.  This matter is discussed in an article by solicitor Phil Shiner which was published in the Law Society Gazette 28th July 2011 - "Onus on UK to investigate Iraq torture."  As Shiner points out, the UK government has consistently deployed legal argument to avoid accountability.

Fourth Baha Mousa Memorial Lecture:

The former Senior Legal Adviser to the British Army in Iraq - Lt. Col. Nicholas Mercer - delivered the Fourth Annual Baha Mousa Memorial Lecture on 18th October 2012.  His lecture is reported at The Guardian 19th October 2012 where it is reported that Colonel Mercer said the UK's complicity in the unlawful treatment of detainees was "institutional" and must be wiped out to prevent future abuses by British troops.  Colonel Nicholas Mercer described how he was gagged by the Ministry of Defence after he criticised senior British commanders and MoD officials in the case of Baha Mousa, who died while in the custody of British troops.  Mercer said his attempts to set up independent judicial monitoring of the treatment of detainees were blocked by the MoD. Britain's obligations under domestic and international law were routinely ignored, he added.

Public Interest Lawyers - Fourth Baha Mousa Lecture - podcast of Colonel Mercer's address

Baha Mousa and the Inquiry:

The Death of Baha Mousa took place in while he was in British Army custody in Basra, Iraq in September 2003.  An Inquiry under the Chairmanship of Sir William Gage (see note below) made 73 recommendations (The Guardian 8th September 2011).

The three volume report of the Inquiry (8th September 2011) may be accessed (with some effort) via National Archives.  The Inquiry recommendations were accepted by the government but with an important reservation - see Statement by Rt Hon Dr Liam Fox MP - Minister of Defence.   Dr Fox stated:

"I can inform the House that I am accepting in principle all his recommendations with one reservation. It is vital that we retain the techniques necessary to secure swiftly, in appropriate circumstances, the intelligence that can save lives. I am afraid that I cannot accept the recommendation that we institute a blanket ban, during tactical questioning, on the use of certain verbal and non-physical techniques."

On 14 October 2011 Fox resigned from his office as Secretary of State for Defence, following controversy over his relationship with Adam Werritty - see the entry on Wikipedia.

Follow up:

I have not been able to discover any details of the actual implementation of the Gage Inquiry recommendations.  (This may exist but I have not been able to find it).

An investigation process into historic allegations of abuse in Iraq was held by the Court of Appeal to have insufficient independence - The unfolding aftermath of the Iraq War  - see Court of Appeal (Civil Division) decision in R (Ali Zaki Mousa) v Secretary of State for Defence [2011] EWCA Civ 1334at para. 36

Further legal proceedings involving the Iraq Historic Allegations Team are pending in the High Court - Public Interest Lawyers.

A report in The Telegraph 12th October 2012  states that a Ministry of Defence inquiry has been launched after an official assessing Iraqi detainees' abuse allegations resigned because her colleagues "just weren't interested" in justice.

The Iraq Historic Allegations Team process appears to be, at best, slow and unsatisfactory though, in fairness to the Minstry of Defence, in November 2010 it was said that the investigation process would take around 2 years to complete - MoD Setting up of IHAT..

Media / Blogs:

A good report published at the conclusion of the Inquiry is at British Forces News 8th September 2011.

For other posts touching upon the Baha Mousa case see Law and Lawyers

The Guardian 19th October - Iain Cobain - Torture UK: Why Britain has blood on its hands - an article taking a panoramic view of the UK activities in the aftermath of 9/11


Sir William Gage was called to the Bar in 1963, served as a Judge of the High Court of Justice (1993-2004) and was appointed a Lord Justice of Appeal (2004-2008). He was elected to an Honorary Fellowship at Sidney Sussex College Cambridge in 2005.

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