Captured Iraqi civilians protected by Human Rights Act in landmark ruling

Iraqi civilians arrested and detained by British soldiers can rely on the protection of the Human Rights Act, the House of Lords said yesterday in a landmark judgment, which has far-reaching implications for future military operations abroad.

The ruling is also a victory for the family of Baha Mousa, a 26-year-old Iraqi hotel worker beaten to death by British soldiers six months after the invasion of Iraq. Mr Mousa's father, Daoud, a former colonel in the Iraqi army, said that he hoped his dead son would receive justice at a full and independent inquiry into the Army's actions.

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Mr Mousa said: "I hope that as a result of this judgment the truth will come out and that no other family should have to experience what me and my grandchildren have gone through. Before that terrible series of events leading to Baha's death I had great faith in the British people and their Army. What happened then and with the court martial all but destroyed that faith. This judgment gives me at least a glimmer of hope that Britain is truly a country that believes in the importance of justice being done and being seen to be done."

Yesterday three UK human rights groups - Liberty, Amnesty International and Justice - called on the Government to recognise the significance of the ruling and carry out a full investigation into the treatment of prisoners in Iraq.

In the 4-1 majority judgment yesterday, the law lords upheld the findings of the Court of Appeal in December 2005 and the High Court over the UK's obligations under the European Convention on Human Rights, which is enshrined in the Human Rights Act, as applied to the conduct of British troops operating within a foreign territory. They dismissed claims by the families of five other Iraqis because their deaths occurred outside British custody.

After the ruling, Phil Shiner, one of the lawyers representing the Iraqi families, said the Government had "sanctioned" some of the unlawful practices in Iraq. He said evidence from a six-and-a-half month court martial into the death of Baha Mousa showed that the UK had dropped the 1972 ban from the Heath government on hooding, stressing, sleep deprivation, food deprivation and noise. He also alleged that the Attorney General, Lord Goldsmith, had advised that the Human Rights Act did not apply, which meant that soldiers need follow only lower legal standards.

Mr Shiner said the Government had suppressed until now much of this material including bundles of evidence from the court martial, and a video showing hooded and cuffed detainees being verbally and physically abused as they were man-handled into the UK's preferred stress position.

Shami Chakrabarti, the director of Liberty, said the ruling means that there can "never be a British Guantanamo anywhere in the world". She added: "British soldiers died in a war fought in the name of human rights. Yet our Government argued that the Human Rights Act had no place in Iraq. This decision means that Government must now face up to its obligations to detainees. Individual soldiers will no longer carry the can for systemic hooding and beating and worse."

The Ministry of Defence said it would oppose a public inquiry. The MoD said that it is prepared to hold a board of inquiry into the death of Baha Mousa, who died while in British custody in Basra with 93 injuries to his body. That would be an internal investigation with the board comprised of military personnel. The conclusions of such boards are made public, with passages redacted if security issues are involved.

The MoD said that a separate investigation is under way by the Royal Military Police following the emergence of "new evidence" during the court martial of seven soldiers in connection with the death. Some soldiers may a1so face disciplinary action.

Brigadier Robert Aitken, the director of Army personnel strategy, is carrying out a review of the allegations made against soldiers after the initial phase of the invasion. The Government has consistently argued that the Human Rights Act should not apply to British soldiers in Iraq.

But yesterday Baroness Hale of Richmond, one of the five law lords in the appeal, said: "It has many times been said that the object of the Human Rights Act was to give people who would be entitled to a remedy against the United Kingdom in the European Court of Human Rights in Strasbourg a remedy against the relevant public authority in the courts of this country. The United Kingdom now accepts that it would be answerable in Strasbourg for the conduct of the British Army while Mr Mousa was detained in a British detention unit in Basra. It would be consistent with the purpose of the Act to give his father a remedy against the Army in the courts of this country."

The question of whether the Army was in breach of the Human Rights Act in not carrying out an independent investigation into the death of Mr Mousa will be now considered by the Divisional Court. Around 60 compensation claims are being prepared by Martyn Day, a leading human rights lawyer.

An open letter to Colonel Jorge Mendonca from Colonel Daoud Mousa

Colonel Jorge Mendonca MBE, 43, the highest-ranking soldier in recent history to face a court martial, was cleared of negligence in relation to the death of Baha Mousa in February after a five-month trial in Bulford, Wiltshire

Dear Colonel Mendonca,

I hear that you felt compelled to resign from the British Army rather than face a disciplinary investigation over the death of my son. I see that your wife claims the two-year investigation and your trial caused a lot of pain and suffering to both of you and your two sons. The question is, if mere interrogation has caused pain and suffering to you, what about the pain and suffering caused to my son Baha? Try to compare!

What about the eternal suffering of my grandsons, Hassan and Hussein, whose father was killed when they were barely six? What about my suffering, as a father who not only lost a son, but also a dear friend?

I remember when you used to visit me in Basra and see the two orphans. You played with them and gave them toys. I could detect pain in your face.

I tell you now as I told you then, a good leader knows in the minutest details about what happens within the sphere of his authority, and if he doesn't know, he is a great failure. I am myself a soldier in the police force and I know how far a leader commands and controls his soldiers. How many innocent, unarmed civilians have been killed by the British Army?

I understand you have been awarded a Distinguished Service Order for exemplary leadership, but what kind of a hero are you? In my view you deserve a paper medal. The British Army is a great army, but there are some people within it who are outlaws.

I agree with your wife that the court martial was a farce. How can there be a fair trial when the Ministry of Defence investigates, prosecutes and judges itself?

I hope you and the soldiers under your command now find it in your conscience to accept responsibility for the heinous crime committed.

Colonel Daoud Mousa