Phil Shiner: We Brits play by the rules. What rules would they be?

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The occupation of Iraq has led in recent months to a number of cases of Iraqi civilians being killed or tortured by British forces. It is now admitted - as revealed by The Independent on Sunday - that 48 people have died while in the custody of the British army. My law firm is acting in 29 deaths and eight torture cases. It seems there are many more but, because of the Government's secrecy, we cannot be sure.

The occupation of Iraq has led in recent months to a number of cases of Iraqi civilians being killed or tortured by British forces. It is now admitted - as revealed by The Independent on Sunday - that 48 people have died while in the custody of the British army. My law firm is acting in 29 deaths and eight torture cases. It seems there are many more but, because of the Government's secrecy, we cannot be sure.

There is a tendency for the British to believe that we play by the rules. But it is far from clear exactly what those rules are. For example, can soldiers and officers of the British armed forces abroad be held to account for unlawful killings and incidents of torture? Who does take responsibility for these incidents, or is there continuing impunity for what amount to war crimes, torture, or serious violations of the Geneva Convention provisions?

These cases arise from the occupation of Iraq, not from the war itself. Baha Mousa was tortured and killed by British forces while in detention in September 2003. Kifah al-Mutari, after being tortured and abused in detention, almost died from acute kidney failure. Seven other men were tortured and abused in the same incident. Others for whom I am acting died when soldiers burst into their homes as they were eating, getting ready for prayers, or generally going about their lawful business - as lawyers, policemen, farmers and mothers.

These events are alarming enough, but we are not even allowed to know what instructions British soldiers in Iraq had been given. The Government refuses to disclose those instructions - known as the rules of engagement. So we will never know what steps the soldiers had been required to take in order to avoid unnecessary casualties after they had broken down doors, or encountered the traditional shooting into the air at Iraqi funeral parties.

The secrecy doesn't end there. The role of the commanding officer (CO) in the closing down of internal investigations, the lack of independence of the Royal Military Police (RMP), the lack of forensic or witness evidence, the failure to identify and preserve evidence, the delay, the tampering with death certificates (as in the Baha Mousa case), the exclusion of victims' families, and the opening and closing of investigations in private all lead to a regrettable vacuum in accountability. Thus, it is unsurprising that there have been no charges brought, no lessons learnt, and no closure for relatives.

Defenders of the system might claim that what is important is not so much the transparency of the investigation but the probity of those conducting it. But, in essence, the Government's case is that we can leave accountability to the armed forces. Its evidence, from 10 senior commanders, shows a consistent and marked pattern. The argument rests on the CO's assessment of whether there was a breach of the rules of engagement. In most cases, after hearing from one side - the soldiers - the CO concluded there had been no breach, and the matter was closed.

In others, the matter was referred to the special investigations branch of the RMP, which was satisfied there was no breach, and in some cases was told by the CO to close investigations. However, we do not know whether the rules of engagement even cover these incidents and therefore, in turn, whether they allow the CO to rule that the soldiers acted lawfully.

There cannot be any meaningful accountability for these incidents - which may be atrocities or genuine mistakes - unless there is an effective and independent investigation. There must be no hierarchical or other link between the investigator and the investigated. The process must be prompt, evidence preserved, and cross-examination of witnesses allowed, with the involvement of relatives. These are basic principles established by Strasbourg and the House of Lords.

Without an effective investigation one never knows who is responsible, and how far up the chain of command that responsibility lies. We claim that the protection of the International Criminal Court Statute 2001 against "War Crimes" and " Crimes Against Humanity", the UN Torture Convention, or Geneva Convention IV, which protects civilians in occupation, is meaningless without the trigger of accountability through an independent inquiry. By analogy, one can have the most stringent regulation of drink driving, but if there are no traffic police on hand it will not amount to much.

And compounding all this is the fact that the Government relies on a legal technicality to avoid accountability for these incidents. It says that the Human Rights Act 1998 - which if applicable gives rise to a need for an effective investigation - does not apply to south-east Iraq while the British were in occupation. Hiding behind legal technicalities undermines the key principles of respect for the rule of law and democracy, which underpinned the Government's case for war. It seems it is anxious to escape the consequences of these human rights violations.

It is incredible that innocent Iraqis can be beaten to death and tortured in detention without that being a matter that falls within the Government's jurisdiction. Its evasiveness is futile. Eventually these cases will succeed - if not in the UK courts, then in Strasbourg. But these outmoded rules need immediate reform. COs and others must no longer be allowed to cover up mistakes or atrocities so the public never knows what has been done in its name, or victims' relatives never assured that lessons have been learned.

Phil Shiner, of Public Interest Lawyers, is a specialist international and human rights lawyer

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