'Torture troops' may yet be charged
Wednesday 29 December 2010
Former and serving British soldiers are awaiting a landmark report into the brutal death of an Iraqi civilian which could lead to them facing criminal charges.
Father-of-two Baha Mousa, 26, sustained 93 injuries while in the custody of 1st Battalion the Queen's Lancashire Regiment (1QLR) in Basra, southern Iraq, in 2003.
A major public inquiry into his death and the abuse of nine other Iraqi men held with him is expected to publish its findings in the spring.
While the inquiry has no powers to accuse the soldiers of crimes, prosecutors could use its report as the basis for bringing charges.
Seven 1QLR soldiers, including former commanding officer Colonel Jorge Mendonca, faced allegations relating to the mistreatment of the prisoners at a high-profile court martial in 2006-07.
But the trial ended with them all cleared, apart from Corporal Donald Payne who became the first member of the British armed forces convicted of a war crime when he pleaded guilty to inhumanely treating civilians.
The surviving detainees and Mr Mousa's father are optimistic that further action could still be taken against those behind the abuse.
Their solicitor, Phil Shiner, of Birmingham-based Public Interest Lawyers, said: "My clients remain hopeful that in due course all those responsible for the killing of Baha Mousa and the torture of the survivors will be brought to book.
"It is particularly important that a message be sent out that those in positions of command will be brought to book in the future. That will assist in ensuring that the moral compass must always prevail."
Mr Mousa was working as a receptionist at the Ibn Al Haitham hotel in Basra when it was raided by British forces in the early hours of September 14, 2003.
After finding AK47s, sub-machine guns, pistols, fake ID cards and military clothing, Mr Mousa and several colleagues were arrested and taken to Preston-based 1QLR's headquarters.
Here the soldiers subjected the Iraqis to humiliating abuse, including "conditioning" methods banned by the UK Government in 1972 such as hooding, sleep deprivation and making them stand in painful stress positions, the inquiry heard.
Mr Mousa was hooded for nearly 24 of the 36 hours he spent in British detention. He died at about 10pm on September 15.
His 22-year-old wife had died of cancer shortly before his detention, meaning his two young sons, Hussein and Hassan, were orphaned.
The wide-ranging public inquiry also heard evidence about the question of why British soldiers serving in Iraq used prisoner-handling methods outlawed over 30 years earlier.
It was told that UK commanders had issued orders banning hooding in May 2003 and October 2003 but the practice continued to be used until the following May.
Under the Inquiries Act 2005, inquiry chairman Sir William Gage has no power to make a ruling on anyone's civil or criminal liability.
But the law stresses that he should not feel restricted by the possibility that other authorities will infer liability from his findings or the recommendations he makes.
Sir William said at a hearing in July: "I read that as saying: I find the facts. It is for others to say what they constitute and label them, if they feel it necessary, an offence or civil liability but it is not for me to say."
Lawyers for Mr Mousa's father and the other detainees argued in closing submissions that the inquiry should rule that a group of six soldiers led by Cpl Payne killed Mr Mousa and that others were culpable for failing to prevent the violence against the prisoners.
They added: "Ultimately the CO (commanding officer) is to blame for what happened. The level of aggression which he allowed and sometimes encouraged his forces to exhibit are likely to have caused as many problems in Iraq as they solved."
Col Mendonca, who was cleared by the court martial of negligently performing a duty in relation to the abuse, told the inquiry in February that Mr Mousa's death was a "one-off" and insisted he left Basra a better place.
James Dingemans QC, representing a number of the soldiers, stressed to Sir William in closing submissions: "It is no part of a public inquiry to play around on the edges of criminal law and it is not the function of the procedures that have been given to you by parliament."
Sir William said at the start of the hearings that it was possible the inquiry could uncover "very serious misconduct" by British soldiers.
However, former attorney general Baroness Scotland granted the troops immunity against criminal prosecution based on their evidence to the inquiry.
The Ministry of Defence also said it would not take disciplinary action against military personnel if their testimony suggested they earlier lied or withheld information.
But Sir William rejected calls from the soldiers' lawyers for a guarantee that what witnesses told the inquiry would not be used as hearsay evidence in prosecutions.
The long-standing legal principle of "double jeopardy" prevents people being tried twice for the same crime.
But the Criminal Justice Act 2003 introduced exceptions for serious offences, such as murder and manslaughter, when significant new evidence comes to light.
The Ministry of Defence agreed in July 2008 to pay £2.83 million in compensation to the families of Mr Mousa and nine other Iraqi men abused by British soldiers.
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