The Law Lords and Baha Mousa

The Law Lords have ruled that the killing of Baha Mousa in the custody of British troops is indeed covered by the Human Rights Act and that there must be an independent inquiry. Whilst this was the best ruling that they could have made,  it is hardly good news. The Government- and it is the Government, not the hated ‘military’, that must take decisions of this kind- has been dragged to the point it should have reached when Mousa was killed over four years ago.

If a foreign detainee dies in the custody of British troops, we need a full and clear inquiry as soon as possible, and criminal charges must be pressed wherever the evidence merits it. With the death of Mousa, we had a Court Martial four years after the event, which found that one Junior Non-Commissioned Officer (a Corporal, who would normally be in charge of eight soldiers and paid about fourteen or fifteen grand) had kicked, but not killed Mousa, and that no-one else in uniform was to blame for anything at all. This stinks. 

Other aspects of the case probably  stink as badly.  It’s hard to comment in detail, since the dopey British media have not covered the case with any real journalistic assiduity:- op-ed writers on the Guardian and Independent have bleated Mousa’s name as a justification for their own belief that all British soldiers are murderers, whilst the Mail and Telegraph have wound themselves up into a fury over the supposed martyrdom of the most senior officer acquitted by the Court Martial, but we haven’t had any detailed reporting of the trial itself in the newspapers.

But a few facts have seeped out. There has been a disturbing BBC ‘Panorama’ documentary, which seems to confirm my initial instincts. I felt when I first read about the case that a junior NCO could only have killed Mousa if his death had been the result of a beating of an hour or so before he was ‘processed’ as a detainee. The longer he was held, the more officers and Senior NCOs would be involved in controlling his detention and the harder it would be for one junior rank to gain access to the prisoner.  That does not necessarily implicate the Battalion CO of the Queen’s Lancashire Regiment, Col. Jorge Mendonca, but it does mean that serious questions have to be asked of him and of a whole series of officers below him in the chain of command. ‘Panorama’ made a number of serious allegations against one particular Lieutenant commanding a rifle platoon. I would like to know the roles played by that man’s Company Commander, Company Second-in-Command and Company Sergeant Major, as well as the Battalion Intelligence Officer, and the Brigade Intelligence staff who were apparently present at the time.

One of the arguments offered in defence by the lawyers of Colonel Jorge Mendonca was that a highly questionable policy of ‘softening’ detainees was put in place, against his objections, by higher (un-named) authority. This policy, Mendonca’s defence seems to have argued, was not expected to kill detainees, but some soldiers, having been allowed to beat detainees, ‘went too far’ following the killing of a popular officer, and killed Mousa. Now this is a credible, internally consistent story; one can imagine how it would happen. We need to find out if it actually did happen: either Mendonca is lying when he says it did or the MoD is lying when it says it did not.

If such a policy was in place, who authorised it? If someone in a position of authority ordered British soldiers to maltreat captives, that would be  very serious; and if the civilian politicians in charge of the uniformed military connived at such a policy, for example by not insisting on the highest standards in detainee treatment, that would be more serious still. There has been surprisingly little follow-up on the ‘Independent’s recent allegations that a British Army lawyer, Colonel Nicholas Mercer, quarrelled with the (civilian) Attorney General, Lord Goldsmith, over the standards required for the treatment of Iraqi civilians. According to the Independent, which has backed its story with a number of leaked emails, Colonel Mercer argued that Iraqi detainees be treated according to the Human Rights Act, whereas Goldsmith, backed by a number of senior civilian lawyers at the MoD and FCO, argued for what was described as a ‘more pragmatic’ policy. Pragmatic, practical: we need to be very afraid when we hear these terms being applied to interrogations.  

Essentially, the Law Lords’ judgement confirms Mercer’s belief that Iraqi civilians detained by British troops are covered by the Human Rights Act, which has rather more stringent protections than those offered to detained combatants by the Geneva Conventions. (The Law Lords also ruled that another Iraqis who were not detained by British troops but were shot by them or otherwise came into contact with them during the course of patrols were not to be treated according the HRA’s provisions.  Essentially, the Lords accepted that hostile or neutral civilians encountering the British Army on foreign soil were ‘extraterritorial’ but that civilians detained on British bases were subject to all the protections of the law. This opens up another set of questions, about how the Army ought to, and how it does, treat civilians and combatants encountered outside its bases, which we will have to deal with elsewhere.)

If this did happen, it would not be the first time that the military showed a greater attachment to the rule of law than their political masters: in 1972, Ted Heath and his Attorney General instructed the then head of the Army, Field Marshall Sir Michael Carver, that his men could shoot IRA suspects on sight even if they were unarmed, only to have Carver refuse to issue the order on the grounds that it would be unlawful. 

But who knows? Perhaps the senior military really did originate a policy of brutality, with the political leadership blissfully unaware: the Secretary of State for Defence in 2003 was Geoff Hoon, who revealed to Lord Justice Hutton that he had rather a gift for not knowing the policy of his own Department.  Or perhaps this really was a case of the lower ranks, abetted by one or two junior or middle-ranking officers, running amok in the wake of British casualties. We do need to know: which is why one’s heart does not exactly leap at the news that the Law Lords have stated that there must be an independent judicial enquiry.

  My prediction is that this inquiry, like previous ones, will do a fine job at apportioning blame among the lower ranks and see no faults committed by their seniors. This is not entirely bad- several soldiers kicked Mousa to death or connived at his beating, and I would like to see them all serve jail terms, not just one scapegoated thug as at present. But I would also like to learn if there was a deliberate policy of brutality against detainees, and if so who instituted it. Here one can expect the usual veil of ambiguous phrases drawn over the higher ranks. Will lawyers criticise lawyers, when they can find that all wrongdoing was the fault of  some 18-year old soldier from Manchester?

 More generally, what system should be in place to investigate deaths in British custody? We need to realise, first of all, that Mousa’s is – so far as I can determine- the only reported suspicious death in the custody of British troops in over four years of the occupation of Southern Iraq. Given the deaths of dozens of British troops in Southern Iraq in the same period, this is no mean achievement. Any system investigating military actions should probably have soldiers as all or at least some of its investigators: any investigative team consisting entirely of civilian police officers or lawyers would have very great difficulties in understanding the language and procedures of soldiers, whether they were guilty or innocent of any crimes. A Court Martial is the system that soldiers expect to be tried under.  There might be a case for creating a new agency, not the Royal Military Police, to investigate allegations against soldiers. There might be a case for trying cases in civilian Criminal courts, not Court Martials. But we should scrap the investigative role of the RMP, or the judicial role of Courts Martial, only if it could be proved that these institutions themselves, and not their present funding or managerial regimes, or meddling by higher authority, were to blame for the contemptible errors in the Mousa case.

(Parenthetically, the Attorney General managed to get one 22-year old soldier committed for trial at the Old Bailey for the alleged murder of an Iraqi civilian, only for the Judge to throw the case out with contemptuous remarks about the weakness of the case. Why do I link to the Telegraph as a news source for this story? Because the Guardian and the Independent seem not to have found it particularly newsworthy, for unfathomable reasons; the Indy’s in-house right-wing op-ed columnist gave the case a mention but it won’t be figuring too prominently in the writings of Deborah Orr or Yasmin Alibhai-Brown. UPDATE 14th June: Quite untrue with regard to the Guardian, as I should have been more careful to check; apparently true regarding the Independent. My apologies to the news editors of the Guardian, should they read this. The Guardian’s op-ed writers seem not to have let the Kevin Williams trial fiasco upset their cherished world-views, on the other hand.)

Again, we need an Inquiry to tell us why it took over four years to bring charges in what must have been a rather simple case: there were, or should have been, clear records of who was on duty when and who had, or controlled, access to Mousa in the hours that he was killed.  Was there genuine incompetence or the willed variety? Again, any such investigation is going to mean criticism of the higher ranks of the Civil Service, probably the command ranks of the Army, and quite possibly of the Cabinet Ministers set over them, so one shouldn’t hold out especially high hopes of this ‘Independent Judicial Inquiry’ achieving great things.

Put soldiers in the midst of a foreign, partly hostile populace and you will need systems to prevent them killing detainees, and systems to properly investigate such killings if they do occur. This is not merely true but obvious. But, looking upon our wars in Iraq and Afghanistan, one begins to despair when one sees the ability of this country’s leaders to ignore even the most basic precepts of good sense.