The Baha Mousa Inquiry: A Good Day For British Justice – OpEd

Yesterday, the publication of the final report of the Baha Mousa Inquirydemonstrated that, occasionally, when something truly monstrous has occurred, the British government can do the right thing, and hold a proper inquiry.

Baha Mousa, a hotel receptionist in Basra, Iraq, was killed by British soldiers in September 2003, his brutalized body bearing 93 separate injuries, after two days of what the judge in the three-year inquiry, Sir William Gage, described as “serious, gratuitous violence” that leaves “a very great stain on the reputation of the Army.”

As the Independent explained in an editorial today, the report is “damning.” The judge found that the “savagery meted out to Mr. Mousa and fellow detainees in Basra in 2003 were not the actions of a few ‘bad apples,’” but were, instead, “the result of systemic, ‘corporate’ failures that meant neither the abusive soldiers, nor their superiors, were aware that forcing detainees to wear hoods and adopt excruciating stress positions contravened both British law and the Geneva Convention.”

The Independent noted, “That any British soldier is unclear about what constitutes torture is disgraceful enough. That there were others who saw what was happening and allowed it to continue is truly shameful.”

In response, Liam Fox, the Secretary of State for Defence, “accepted the vast majority of Sir William’s recommendations, which includes “a total ban on the use of techniques such as hooding, the creation of an independent inspection regime for military detention centres, and an overhaul of soldiers’ training for handling civilian detainees.”

This is appropriate, of course, but the obvious problem that can easily be overlooked is that hooding — and the use of stress positions — were illegal when British soldiers arrived in Basra, having been outlawed by the government of Ted Heath in 1972, following the abuse of IRA prisoners in Northern Ireland.

Phil Shiner, a human rights lawyer who has been involved in seeking accountability for the torture, abuse and murder of prisoners in Iraq, remains deeply concerned abut the use of banned techniques. Speaking to the BBC, he said, “How did it come about that intelligence units were using techniques that were banned in the 1970s — food and water deprivation, stress positions, hooding and the use of noise?”

The BBC noted that, during the inquiry, it emerged that, apparently, “the ban was never made explicit in British army guidance on prisoner of war handling.” The BBC added, “A four-star general was not aware of the Heath ruling. Nor was Adam Ingram, the former armed forces minister.”

If this seems incredible, I’d suggest that it is, and would also suggest that, for those interested in the truth, what is glaringly obvious is that the torture and abuse inflicted on Iraqi prisoners by British soldiers exactly mirrored what the US military was doing, because the British had, by joining the Americans in Iraq, also fallen under the sway of the Bush administration, and defense secretary Donald Rumsfeld, who had been responsible for implementing exactly the same techniques used by the British in their own prisons — most notoriously, in Abu Ghraib.

In 2005, the Intelligence and Security Committee produced a report, “The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq” (PDF) which claimed that, “Whilst the UK co-operates with the US both against terrorism and in Iraq, each country has significantly different rules governing the handling, detention, interrogation and classification of prisoners of war, detainees and internees.” The report claimed that “The UK rules governing detention and interrogation … accord with the Geneva Conventions and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,” but as this was so horribly contradicted by the actions of UK troops in Iraq, and as the inquiry did not fall for the “few bad apples” scenario favoured by the Bush administration, the Committee’s findings do nothing to contradict the assumption that the techniques used by the British — or, perhaps more accurately, the absence of restraints on their behaviour — had come, whether directly  or indirectly, from the Americans.

In addition, as Phil Shiner reported yesterday in the Guardian, after explaining, “I act for over 150 other Iraqis in a court of appeal case where the judgment is due next month on our argument that there must be a single inquiry into the UK’s detention policy in Iraq,” the pattern of abuse was so widespread throughout UK forces in Iraq that there must be further investigations. As he stated, the cases “span the period of March 2003 to December 2008, involve at least 14 different UK facilities and implicate numerous battle groups,” and the allegations “are shocking and involve a range of techniques and practices which were simply not on Sir William’s radar: unbelievably debased sexual behaviour, mock executions, vicious threats of rape of detainees’ female relatives, and systematic use of hooding, sleep deprivation, sensory deprivation, temperature manipulation and solitary confinement for weeks” — all, again, the types of torture and abuse used by US forces.

In Britain, to date, only one former soldier, Cpl. Donald Payne, has been prosecuted and imprisoned for his role in the murder of Baha Mousa. At a court martial in 2007, he “became Britain’s first war criminal,” as the BBC put it, “when he pleaded guilty to inhumane treatment, and was given a one-year sentence. The BBC also toed that he was “the only person to be punished for what happened to Baha Mousa,” although “he told the inquiry that all members of the unit guarding the detainees had kicked and punched them, including an officer.”

As the BBC also explained, “The inquiry heard that Payne had conducted a ‘choir’ of the screams of the detainees.” Former soldier Gareth Aspinall said, “Towards the end of the second day they were all in so much pain that he only had to poke them to get them to make a noise. Cpl. Payne found this funny and when visitors came across they also found it funny.”

In the US, a handful of personnel at Abu Ghraib were blamed for the abuse that was revealed in April 2004, and were subsequently tried, sentenced and imprisoned. In America, however, the Bush administration got away with blaming the abuse on “a few bad apples,” and every branch of the US government has, to date, failed to hold anyone accountable for the 100 or more murders in US custody in Iraq that have never been adequately investigated. The only investigation relating to Iraq that remains open concerns the murder in Abu Ghraib of Manadel al-Jamadi, as was revealed in July, when it also became clear that this investigation — and another involving the death of a prisoner in Afghanistan — were all that was left of the persistent calls by NGOs, lawyers and activists for accountability for those involved in the torture and murder of prisoners in the “war on terror.”

The moral extension of accountability for murders in military custody from the UK to the US is, for me, the most significant knock-on effect of the Baha Mousa Inquiry, although, in closing, I should also note that it ought to show David Cameron what a proper inquiry looks like, as he prepares to push ahead with his whitewash of the security services in his proposed inquiry into British complicity in torture abroad in the wake of the 9/11 attacks, as I have explained before, most recently last month, when ten NGOs, including Amnesty International, Liberty and Reprieve, shredded the supposed validity of the inquiry by refusing to take part in it. As I explained at the time:

I hope that the government will face increased pressure to replace the planned whitewash with a full public inquiry, as, for example, with the Baha Mousa inquiry, held under the Inquiries Act of 2005, as Reprieve requested last summer, noting that that particular inquiry, which is due to issue its report on September 8, was “a model of an inquiry functioning efficiently, including the hearing of secret evidence.” Last summer, Reprieve lamented that, under the plan for the torture inquiry, “there is no formal mechanism for civil participation — so Reprieve and other civil organisations will not be allowed access to documents and proceedings,” whereas, under the Inquiries Act, “document classification review proceedings are sophisticated and rightly allow the judge to balance the need for national security against the need for transparency.”

For Baha Mousa’s family, nothing can ever remove the horror of his murder, but as an indictment of the unacceptable brutality of the “war on terror,” and Britain’s shameful involvement in it, the inquiry is to be commended. It needs to be replicated in the US, of course, although that remains unimaginable, and in both Britain and America it should also stand as model of how to conduct inquiries into the wider use of torture.

But that, of course, will not happen until significantly more people care about the crimes that were committed “in our name,” which at present, sadly, appears to be a far-off dream, however much Baha Mousa’s murder ought to remind us of the nightmare of our own making that we’ve been living through for the last ten years.