25 July 2004
More than a year after the Iraq war was declared over, and 10 months since Baha Mousa, an Iraqi hotel receptionist, was allegedly kicked and beaten to death by members of the Queen's Lancashire Regiment, the first legal challenge to the conduct of British forces in Iraq will be heard in the High Court this week.
The death of Mousa last September while in the custody of the QLR, revealed by Robert Fisk in The Independent on Sunday early this year, is among six cases being brought before the Royal Courts of Justice in London. At the three-day hearing a team of prominent human rights lawyers will ask the High Court to order a full independent inquiry into the conduct of British forces in Iraq.
The lawyers accuse the Ministry of Defence and the armed forces of repeatedly breaching the Human Rights Act 1998. If they succeed, the MoD could face drastic changes in the way British troops behave in wars and peacekeeping operations - curtailing their right to use "lethal force" in hostile areas or during riots, and a possible ban on certain wartime tactics, such as dropping cluster bombs in civilian areas.
Ministers could also be ordered to overhaul their payments of informal "ex gratia" sums to aggrieved Iraqis - a practice the MoD admits "leaves us open to potential criticism of inconsistency". Its case will be put by Professor Christopher Greenwood QC, who advised the Government the invasion of Iraq was legal. The hearing will focus on six deaths drawn from a dossier of 29 killings and severe beatings compiled by the Birmingham-based firm Public Interest Lawyers.
It will be attended by Col Daoud Mousa, Baha Mousa's father, and the receptionist's friend Khifeh Taha, who was detained at the same time and sustained acute kidney failure and severe bruising after allegedly being beaten for three days.
According to a four-strong team of barristers lead by Rabinder Singh QC, these cases prove the Army did not guarantee the "right to life" of Iraqi civilians and failed to prevent torture and inhuman treatment, in breach of the European Convention of Human Rights and the 1998 act.
Mr Singh, from Cherie Blair's Matrix Chambers, will claim the MoD has a legal duty under Article 2 of the convention not to kill anyone without justification, and to accept full legal liability for any unjustified deaths - even when British troops control another country, such as Iraq. Failing to prevent torture and degrading treatment, denying water and food and using solitary confinement is outlawed under Article 3 - issues central to the Mousa case.
He claims the MoD has broken the law in four key areas: it failed to carry out an independent inquiry or inquest; failed to accept legal liability for the deaths and ill-treatment; refused damages in direct compensation for a death; and illegally used ad hoc "ex gratia" payments.
Compensation deals vary widely. The Mousas were offered up to £4,500 - provided they dropped any legal action. The family of Waleed Fayayi Muzban, who was shot dead by British troops in his people carrier, was given £540. Only in the Mousa case is a prosecution expected, but no soldier has yet been charged. The MoD has also admitted in a submission to the United Nations Committee on Human Rights that the army's Special Investigations Branch (SIB) launched its inquiry "within 30 minutes of his death being confirmed".
The MoD will robustly defend its behaviour at this week's hearing. In the most detailed defence of its conduct - a 22-page document passed to The Independent on Sunday - ministers insist MoD policy and training complies with all UK and international law.
The document - a rebuttal of three Amnesty International reports alleging abuses by British troops - states all soldiers are "made fully aware of their [legal] obligations ... as well as the legal principles of distinction, immediacy, necessity and proportional- ity". "It goes without saying that torture is a crime under English criminal law," it adds.
The MoD insists all allegations are investigated thoroughly. Detectives in the SIB and the Army Prosecuting Authority - services it insists are impartial and independent - have carried out 79 investigations into alleged killings, abuse and destruction of property, and are now considering more than a dozen prosecutions. It has also paid out more than £140,000 in compensation - but rarely admits it was at fault.
Yet in many of the alleged abuses and killings no evidence was found of wrongdoing by troops, the MoD insists. Some families refused to allow corpses to be exhumed or autopsies to be carried out, and in others, witnesses refused to talk.
But the MoD has slowly accepted these scandals have revealed weaknesses in its policies. It banned the use of hoods in Iraq after the Mousa case; has now named 25 Iraqis whose deaths were investigated; and has admitted its compensation scheme is flawed. The High Court has to decide if this is enough.
Muhammad Abdul Ridha Salim
The 45-year-old teacher was visiting his brother-in-law late on 5 November 2003 when British soldiers burst into their house at Al Andalus, in Basra. Fearing an attack by criminals, the teacher and his brother-in-law rushed downstairs, and confronted a soldier.
Mr Salim was shot in the stomach. In the confusion, his sister screamed at the troops and was bundled into a side room. Mr Salim died later in hospital. In a letter to the family, Major S Routledge, of the King's Regiment, admitted the raid had been a mistake. They had been given an anonymous tip-off that 10 men, armed with rifles and rocket-propelled grenades, were gathering at the property. Maj Routledge admitted: "It appears that the British forces were deliberately misled and it is regrettable that this incident led to the death."
Hazim Jum'aa Gatteh al-Skeini
He and another man were on their way to a funeral near Basra after dark on 4 August 2003 when they were shot by British soldiers, dying almost instantly.
The commander of the King's Regiment, Lieutenant-Colonel Ciaran Griffin, told Mr Gatteh's tribe his troops had mistaken mourners firing into the air for a gun battle but implied Mr Gatteh was illegally carrying a gun. He expressed regret at the "misunderstanding" and offered the family £540. "In retrospect it became clear [the] two men ... had not intended to attack anyone," he said.
Raid Hadi al-Musawi
The 29-year-old policeman was coming home at about 10pm after dropping off a box of "suggestions and complaints" at a local judge's house on 27 August.
As he neared his home, close to Al Farahidi police station in Basra, a British armoured patrol allegedly shot at him without provocation. He died nine weeks later from his wounds. His mother, Nuzha Habib Yaaqub Ubaid al-Rayahi, said: "From what I have been told, the British Army fired on my son for no reason... I understand also that there were no other parties involved in shooting in this incident."
Hannan Mahaibas Sadde Shmailawi
She was preparing for supper with her husband, Hameed Abdul Rida Awaid Kareem, a porter at the Basra Institute of Education, and her children on 10 November when shots were fired into the room, hitting her in the head and legs.
Ms Shmailawi, 33, was rushed to hospital by the King's Regiment soldiers involved, but was dead on arrival. The reason why troops opened fire remains unclear, but a note by a Major Routledge admits his unit was responsible. Mr Kareem said British engineers who saw the incident said the soldiers had been on the institute's roof and asked them where Mr Kareem lived and if he was armed. They were told he had permission to carry weapons. Mr Kareem said: "There was no opportunity to protect my wife. [We] could not understand why British soldiers would fire into our home."
Waleed Fayayi Muzban
While driving home from work in his nine-seater Kia people carrier at about 8.30pm on 24 August, his vehicle was hit by a barrage of bullets. He died instantly.
Army documents suggest a unit with the King's Own Scottish Borderers were involved. With the help of local community leaders, Mr Muzban's family tried to reclaim the vehicle from the British Army, but officers tried to buy it from them. His brother, Fadil Sayay Muzban, claimed a British official said "the vehicle was hit from behind [and] this would adversely affect their legal position". Eventually, the family took £540 compensation, but it was unclear whether that was for Mr Muzban's death or the vehicle. Their British lawyer, Phil Shiner, has accused the Ministry of Defence of withholding evidence by refusing to hand the vehicle over.
The receptionist at the Al Haitham hotel in Basra was arrested in a dawn raid on the hotel by a squad of Queen's Lancashire Regiment troops searching for an illegal weapons cache.
Along with seven others, Mr Mousa was taken for interrogation after another man escaped during the raid, on 13 September 2003. Mr Mousa was then allegedly beaten to death at the Army's headquarters in Basra. Medical records showed he died of "asphyxia" - a consequence of being hooded during the beatings.