'Landmark ruling' as Government loses appeal on Iraqi death

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The Independent Online

The Government today lost a challenge to a High Court ruling which overturned its refusal to order an "independent and effective" inquiry into the death of an Iraqi civilian allegedly unlawfully killed by British troops.

The families of five other Iraqi civilians who are seeking inquiries into their deaths - but lost in the High Court - lost challenges in the Court of Appeal against that decision today.

In December last year, two judges in London ruled in favour of the family of hotel worker Baha Mousa, 26, who was allegedly tortured and beaten to death while in custody in September 2003.

But the five other families had applications for judicial reviews rejected.

All six families had claimed that they were entitled under human rights laws to unprecedented investigations into whether troops were guilty of unlawful killing.

Decisions in all of the appeals were given by Lord Justice Brooke, sitting with Lord Justices Sedley and Richards

Lawyers described their ruling as a "landmark" judgment.

Two High Court judges ruled last December that the case of Mr Mousa, who was in the custody of British troops at the time of his death, came within the UK's jurisdiction.

But the other five cases, where those allegedly unlawfully killed were not in custody, failed.

In a statement given out today after the Court of Appeal judgment, lawyers for the families said: "The Court of Appeal have today handed down a landmark judgment about the torture and abuse of Iraqi civilians in detention with UK Armed Forces in occupied Iraq."

It continued: "The Court of Appeal upheld the High Court's ruling from December 14 2004 that the European Convention on Human Rights and Human Rights Act 1998 do apply to detention cases.

"It extended the scope of jurisdiction to include cases of Iraqi civilians being deprived of their liberty generally and then tortured."

The High Court had found only that jurisdiction extended to a prison on a quasi-territorial basis.

The lawyers described it as an important extension and "will mean that many cases involving death and torture in situations where Iraqis have been deprived of their liberty will now have to be the subject of independent and proper investigations".

Phil Shiner, of Public Interest Lawyers, said there must now be an independent investigation into Mr Mousa's death.

He commented: "The Government must follow the court's very clear ruling that the military system of investigation and prosecution in torture and abuse cases is fundamentally flawed."

Mr Shiner added: "It requires urgent and far-reaching reform."

He said the Government had argued that the Human Rights Act did not extend beyond the UK, but the court found against it on that point.

"This has very important implications, as otherwise violations of human rights by the actions of UK officials and agents around the world could only be remedied by cases taken to the European Court of Human Rights."

In the five other cases, in which appeals were rejected today, the court found that the European Convention on Human Rights Act did not apply as the Iraqis who died had not been deprived of their liberty and therefore the requisite authority and control by state agents was not present.

Mr Shiner said the Court of Appeal had "lambasted" the military system of investigating and prosecuting incidents of alleged torture and unlawful killings in occupied Iraq by UK Armed Forces.

He said the court had called on the Government, the military prosecuting and police authorities, to "study with 'great care' the numerous critical points made by the legal team on the military system of justice as it applied in these cases."

The five other test cases included the case of Hazim al-Skeini, 23, who was allegedly shot dead on August 8, 2003, by a British soldier.

Family lawyers say he was unarmed and no threat. He was shot several times in the stomach and was dead on arrival at hospital.

It was said that British soldiers were responding to traditional rifle shots at a funeral, mistaking them for "a dangerous gun battle".

In the case of Waleed Muzban family lawyers say he was driving home from work on August 24, 2003, in a people-carrier when he was hit by a barrage of bullets fired by British soldiers. He died in hospital. The British army impounded the vehicle.

Three days later Raid al Musawi, a 29-year-old local policeman, was shot at about 10pm by a British patrol. He was on his way to deliver petitions, containing suggestions and complaints, to a local judge's house. He died from his gunshot wounds nine weeks later in hospital.

In November 2003, Muhammad Salim, a 45-year-old teacher, was allegedly shot by a soldier after a raid by British troops on his family home near midnight.

Family lawyers say the front door was broken down. Salim was confronted and shot by a soldier in the hallway.

They say the entire raid has been acknowledged to have been in the mistaken belief that it was on an armed group. He later died in hospital.

On November 10, 2003, Hanan Schmailawi was sitting down to her evening meal with her husband and family in the educational complex where they lived.

She was hit by machine gun fire and died in hospital.