Court rules Britain should probe death of Iraqi civilian
By Jenny Booth, Times Online
Abu Ghraib inquiries were better, say judges
The High Court ruled today that the Government should hold an independent inquiry into the death of an Iraqi man who was allegedly tortured while in the custody of British troops in southern Iraq.
Two judges ruled in favour of the family of a hotel receptionist, Baha Mousa, 26, which was challenging the Government's refusal to re-investigate the case.
The scathing judgment says that the British investigation into Mr Mousa's mistreatment and death compares unfavourably with the prompt, open investigations carried out by the Americans into prison abuses at Abu Ghraib jail in Iraq.
Lord Justice Rix and Mr Justice Forbes add that the Royal Military Police investigation into Mr Mousa's death failed to meet the standards on fair trials set by the European Convention on Human Rights. "It is difficult to say that the investigation which has occurred has been timely, open or effective," said the judges.
They could not agree with the Ministry of Defence's arguments "that the investigation has been adequate in terms of procedural obligations arising out of Article 2 of the convention" - the part that guarantees a fair trial.
The investigation lacked "the progress and open public scrutiny which... seems to have been achieved with other investigations arising out of possible offences in prisons under the control of US forces".
The judges reject the cases brought by five further bereaved Iraqi families who had also applied for judicial reviews - but hint that they might have a case on different legal grounds. They write: "There may be other remedies, but we are not concerned with that here."
Mr Mousa was arrested by soldiers of the Queen's Lancashire Regiment soon after the joint British and American invasion of Iraq last year.
Kifah Taha al-Mutari told the High Court in a witness statement how he, Mr Mousa and five other hotel workers were taken to the British base at Darul Dhyafa, where he claimed they were hooded, had freezing water poured over them, were kept awake for three days and were beaten on the neck, chest and genital areas.
On the third morning the captives were ordered to "dance like Michael Jackson", he claimed.
"Baha appeared to have much worse treatment than the others," said Mr al-Mutari. "The soldiers continued beating him even when he was on the floor. The soldiers used particular sharp, jabbing movements into the area below the ribs, which was particularly painful."
He went on that the soldiers took it in turns to abuse the hotel workers, sometimes up to eight at a time. "The soldiers would surround us and compete as to who could kickbox one of us the furthest. The idea was to try and make us crash into the wall."
Mr Mousa was taken away for special treatment, he said. "On the third night Baha was in a separate room and I could hear him moaning through the walls. He was saying that he was bleeding from the nose and that he was dying. I heard him say: 'I am dying... blood... blood...' I heard nothing further from him after that."
Mr Mousa's father, Colonel Daoud Mousa, a retired policeman, wept as he described the injuries on his son's dead body when it was handed back to him.
The judges ruled that because Mr Mousa died in British military custody, his death fell within the jurisdiction of British human rights law, but as the other five civilian deaths did not occur in custody they did not fall within the jurisdiction of British law.
Of the five, four involved Iraqi civilians allegedly shot dead by soldiers from the battle group of the King's Regiment, and the fifth was an Iraqi police commissioner who was shot on his way to a judge's house, allegedly by soldiers of the Queen's Lancashire Regiment.
All six families had claimed that they were entitled under human rights laws to investigations into whether troops were guilty of unlawful killing.
Rabinder Singh QC, appearing for the families in the six test cases, had argued that the European Convention on Human Rights applied to all Iraqis in the area of south-east Iraq, because the territory was controlled by the British.
Mr Singh said that the Government was legally obliged to investigate the deaths and to determine whether soldiers had breached articles 2 and 3 of the European Convention on Human Rights, which guarantee the right to life and the right to freedom from torture or inhuman treatment.
But lawyers for Geoff Hoon, the Defence Secretary, had argued the convention did not apply to British troops in Iraq, as the relevant territory was outside European jurisdiction.
They contended that the Human Rights Act, which incorporated the convention into UK domestic law, was, with rare exceptions, "exclusively territorial" and could only be applied inside UK territory.
The judges said in their judgment that British legal jurisdiction was "essentially territorial", but there were exceptions, such as a British-run prison on foreign soil.
After the judgment, the Ministry of Defence said that it was glad that the judges had acknowledged that British human rights law only protected people in foreign countries in very exceptional circumstances.
"The judgment... has wider implications for current and future operations," it said in a statement. "The MoD is therefore considering whether to appeal and has sought permission."
It added that it was not possible to investigate civilian deaths in a foreign war zone, where gathering forensic evidence was highly dangerous, in the same exacting way as in Britain.
The MoD added that today's ruling was "premature", as Mr Mousa's death was still being considered by army prosecutors.
"This case is one of three incidences of deaths in detention in Iraq," the MoD said in a statement.
"Following a Service Police investigation, the case in question is currently being considered by the independent Army Prosecution Authority. For legal reasons it is not possible to comment further.
"In court we argued that it would be premature to conclude that the MoD was in breach of its procedural obligations... before the outcome of the Service Police investigation is known."
Phil Shiner, solicitor for the Iraqi families, claimed after the ruling: "Today is an historic day for human rights and the rule of law in the UK."
He said that the five unsuccessful families would now take their case to the Court of Appeal.
"All the cases of torture by UK soldiers during the occupation of Iraq, including the most terrible of all where Baha Mousa was tortured to death, must now be investigated here in the UK," he said.
Thirty other similar cases were awaiting today's court ruling.
Carla Ferstman, legal director of the human rights organisation Redress, said: It is not enough for the military to investigate behind closed doors. There must be an effective public investigation by an independent official body."
http://www.timesonline.co.uk/article...403129,00.html
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