Baha Mousa, a Basra hotel receptionist suspected of storing insurgent arms, was arrested by British troops in September 2003 and died in their custody. A mere 41 months later, a Court Martial of various soldiers was held, including the Commanding Officer of the Battalion which seized Mousa, Colonel Jorge Mendonca. Having since been told that he a) would not and b) would face possible internal, non-criminal disciplinary action, Mendonca has now decided to quit the Army, to the fury of the Telegraph and the Mail.
1) We don’t know how Baha Mousa was killed and we need to.
We know that Baha Mousa died as the result of being kicked and punched whilst being held in custody by the Queen’s Lancashire Regiment.
What we don’t know, because contradictory evidence was brought at the court martial of the soldiers accused of killing Mousa, is whether he was beaten to death as a result of a deliberate policy of maltreating detainees – and if so who agreed on such a policy- or if he was killed spontaneously by aggressive NCOs and Private soldiers, angered by the recent killing of their comrades by ‘insurgents’ – and if so who the Officers were who could and should have made it their business to know of, and prevent, such maltreatment.
It is entirely possible that the killing of Baha Mousa combined both explanations: if soldiers have been told that a certain amount of maltreatment of detainees is ‘policy’, then all it takes is one or two sadists as the dominant personalities in one infantry section, or one or two men angered by the recent killing of one of their mates, for that ‘certain amount’ of maltreatment to become a matter of kicking a man to death.
This is why the rules against torture have to be as strict as possible and as strictly enforced as possible. Soldiers in Iraq are young men in an entirely foreign environment living in justifiable fear for their lives. Limits on what they can do to civilians and guerrilla suspects are not just there to protect the civilians: they are there to protect the soldiers too.
The British Army has, to its credit, followed this policy with regard to when soldiers may open fire in Iraq and what kind of weaponry they may use. It is right that British troops do not call in artillery or air strikes on crowded Iraqi towns; it is right that British troops are prohibited from firing at anyone they cannot say is directly threatening life; it is right that British troops have no American-style ‘force protection doctrine’ which privileges the lives of troops above civilians. These things are right even if British troops lose their lives as a result; they are right even if the more moronic of their British fellow-citizens are ignorant of the dangers and sacrifices that British soldiers are making. The Army must follow the same principle with regard to detainees.
At the original Court Martial, the Prosecution said that the Army had done so. Mendonca’s defence said that he had specifically queried the rough treatment of detainees and been told that some maltreatment was official policy. Someone is lying and we need to know who.
2) The use of ‘war crimes’ legislation was mere window-dressing.
One NCO, Corporal Donald Payne, admitted beating Mousa, though not causing his death, and was convicted under a War Crimes statute. There is no reason whatsoever to believe that his punishment would have been lighter or his conviction less likely had he been charged, as he could easily have been, under the existing British Criminal or Military Laws governing assault and homicide. There is no reason, therefore, to believe that any deterrent effect was achieved by dragging War Crimes legislation into this squalid affair. Payne committed a crime and deserved to go to jail. But the demand for a War Crimes prosecution that is said to have emanated from the Lord Chancellor’s Department shows, yet again, the genius that this government has for focusing on the inessentials, particularly in matters of life and death.
Of course a British soldier who helps kick a detainee to death should be imprisoned. But the screeching lawyers so obsessed with charging him under their shiny new statute failed utterly, and grotesquely, to investigate the death of Mousa in a full or a timely manner.
3) The length of time taken to investigate and prosecute British soldiers is a disgrace, which hurts all involved in such cases.
It took nearly four years to prosecute the case of a man killed in detention, despite the fact that the soldiers who detained him were known to the investigating authorities, thanks to the Army’s strict record-keeping, and easily accessible for interrogation. This was not, surely, an especially complex case.
Even less complex was the case of the seven paratroopers accused of beating an Iraqi to death, which took over two years to bring to trial and collapsed humiliatingly when six prosecution witnesses admitted lying in their statements, and suddenly discovered that they could not, strangely, remember where they had buried the body of their ‘murdered’ relative. Also un-complex was the case of the tank crewman who fired a machine-gun man assaulting a comrade with a rock, whose shots killed both men: it took over three years to tell him that he would not be facing a trial for murder or manslaughter.
In all three of these cases, British soldiers have been kept waiting for years to find out if they would go to court on homicide charges; and in the Mousa case, at least, this exquisite cruelty was extended to the Iraqi relatives of a man who really had been killed unjustifiably by British soldiers. It is a disgrace that this is happening.
4) The likeliest cause of such delay is the massive underfunding of the Armed Forces in general and the Army in particular.
I would agree with anyone who says that lives may be lost if the Army cannot properly investigate and prosecute crimes allegedly committed by its soldiers, and that, to this end, the military police should be properly funded or replaced. Anyone who says that this must be the Army’s sole or main priority is a fool. Lives are being lost by the despatch of soldiers to Afghanistan with cheap Pakistani-manufactured machinegun ammunition; lives – and many of them will be civilian lives- are likely to be lost by the absurd game of sending out tiny numbers of British soldiers to the Taliban heartlands of Helmand, to be ‘cheaply’ backed up by air and artillery support.
Anyone who has been anywhere near the bases of the British military over the last few years knows the truth: everything is being stripped to the bare bones so that the Government can fight two wars whilst buying a lot of shiny and dubiously useful new weapons systems. The underfunding of military justice is a disgrace, but is of a piece with every single corner of defence policy not linked to big spending on the products of arms manufacturers located in sensitive constituencies.
5) The prosecution of Col. Jorge Mendonca is puzzling, and possibly- but not necessarily- the disgrace it has been painted.
The Mail and Telegraph have alleged in the plainest terms that Mendonca was only prosecuted after criticism of an earlier trial in which private soldiers and Junior NCOs, but not Officers, were tried for the beating and humiliation of Iraqi looters. An officer was to be charged, and Mendonca, say the rightwing press, fit the bill. Maybe, maybe not. It is a little odd, to say the least, that the Commanding Officer of a Battalion was charged and not the officers, and WOs and Senior NCOs, whose had direct responsibility for the men accused of beating Baha Mousa. Were Donald Payne and his cohorts taken from the Intelligence Section, in which case the responsible officer should be the Battalion’s Intelligence Officer, a Captain? From the Headquarters Company, which would have been led by a Major assisted by a Company Sergeant Major? Again, we need to know.
If it was indeed the case that the Attorney General- a man who made a deeply dishonest change of mind over the legality of an attack on Iraq at a key moment in 2003- simply ordered the scapegoating of Colonel Mendonca, that would be a serious abuse of power. It would still, though, be less serious than the killing of Mousa, a matter which the ‘Mail’ and ‘Telegraph’ seem rather eager to forget.
6) We need to get out of Iraq. Out, out, out.
There has not been an atrocious British rule in Southern Iraq: we have evidence of no massacres, no mass roundups, no bombings or shellings of densely inhabited areas. The stupider newspaper columnists, and their more credulous readers, will think that all British soldiers are all murderous thugs regardless of the evidence (and at least some of them will come clamouring for ‘military intervention’ by these same irredeemable butchers the next time there is a crisis like Sierra Leone in 2000 or Rwanda in 1994). That is irrelevant.
But many things are more pressing. We cannot fight any war on the cheap, and yet the Government is trying to fight two wars on the never-never. Yes, it is mere conventional wisdom that fighting in Iraq left us unable to fight and rebuild Afghanistan: and conventional wisdom is right. Britain has escaped the worst of the Iraqi conflict, partly by the tact and discipline of its military- and we can and should say this even in the context of a crime like Mousa’s death- and partly because British forces were located far from the ethnic shatterzones or the concentrations of Sunni rebels.
Now things are changing. The Shi’ites of the South are competing for local power, and they will not stop at non-violent means. The Iranians are, we should admit, the dominant power across most of Southern Mesopotamia, and they are unlikely tolerate the continuing incoherent mix of threats and negotiation from the lame-duck Bush Administration. Nobody knows if it is possible to bring Sadr into an understanding with a stronger Iraqi government, should one improbably emerge. The situation in Southern Iraq is probably now as stable as it will ever get. If British troops are pulled out of Iraq now, they will go with less of their own blood spilled, and less Iraqi blood shed, than will be the case if we stay.
There are things worth fighting and killing for, but giving the Bush Administration time to search for a clue is not one of them. A sensible policy is sometimes the most radical policy: a sensible Brown policy on Iraq would be withdrawal in a maximum of six months. And we are unlikely to see that, since there are simply too many threats that the Bushites will make.
Brown will not want to see the ‘Aid and Trade for Africa’ agenda wrecked, and Bush is easily vengeful enough and irresponsible enough to threaten that. We will continue to have troops in Iraq, in smaller numbers, with the new Prime Minister hoping that you can be a little bit of a military occupier the same way that you can be a little bit pregnant. We will continue to have insufficient numbers of troops in Afghanistan, while airpower and artillery strikes keep bases secure and kill civilians, and while British ministers vapour about ‘reconstruction’ and ‘allied contributions’.
We are heading for more British military deaths, more Iraqi and Afghan civilian deaths, a certain defeat in Iraq and a probable- and even more serious- defeat in Afghanistan. We are heading into these things with our eyes closed and our mouths open: look out for the first Brown speech about how he refuses to do ‘the easy thing rather than the right thing’ in Iraq.
The killing of Baha Mousa was a squalid and brutal affair, and the failure of all subsequent inquiries invite nothing but contempt. But wars bring far worse things than the death of one detainee. Leaving British troops in an ever more unstable war zone, attached to an ally flailing desperately for survival, is to invite more deaths, all squalid and all brutal and all, most importantly, futile.