BAHA MOUSA PUBLIC INQUIRY

Statement by the lawyers on behalf of the victims

Phil Shiner, Public Interest Lawyers

Sapna Malik, Leigh Day & Co

8 September 2011

PHIL SHINER: PUBLIC INTEREST LAWYERS

The Inquiry has found that innocent men, not involved in insurgent activity were the victims of “violent and cowardly abuse” by soldiers of this country’s army.

One of the innocent men was Baha Mousa ~ a 26 year old recently bereaved father of two sons and guardian to two others.

Sir William Gage’s report provides us all with a chronicle of what he himself describes as “grave and shameful events”.

At the heart of this is the death of Baha Mousa. Sir William makes it clear that this cannot be explained away as being simply the act of a few rogue soldiers. His report provides a detailed analysis of how hooding, stress position, sleep deprivation, noise disorientation and minimal food and water ultimately contributed to Baha dying in British custody.

These techniques were explicitly banned by Edward Heath in 1972 and were found to be unlawful, but were being used on a systemic basis by the 1st Battalion, Queen’s Lancashire Regiment in Iraq in 2003 to force suspects to provide information.

It is important to record that what we know now has not automatically come about because our political and military leaders were committed to pursuing truth and justice from the outset. The prize of this inquiry ~ which will contribute to the betterment of our armed services as much as it gives some justice to our clients ~ was only the result of legal action that was vigorously resisted by the MOD at every stage. In all those battles Daoud Mousa ~ Baha’s father ~ was an inspirational figure. Sir William describes him as “the driving force” that made the inquiry possible.[1]

SAPNA MALIK: LEIGH DAY & CO

Sir William has found that the core techniques that Phil Shiner has just described, some of which you see on the DVD we just looked at, were known about by the chain of command in 1 Queens Lancashire Regiment. Soldiers from the commanding officer down knew that techniques of this nature were being used. This was done without writing anything down or properly supervising what was going on. Sir William has found that no amount of explanation based on lack of planning, lack of resources and the hostile nature of the environment can excuse this group of officers allowing inhumane practices into their midst.

As to the more serious assaults, Sir William has found that they “were not perpetrated by just one or two rogue individuals”, but names 19 individual soldiers, including three senior non commissioned officers. Those 19 names have to be seen as part of a much wider group of soldiers, who Sir William found must have been aware that violence was afoot, but did nothing to stop it.

Of those who could have stopped what was going on but did not, I will highlight just three of the many names:

  • Major Michael Peebles ~ still a serving officer ~ was the officer in charge of the internment of prisoners in this Battle Group. He kept these prisoners on the Camp far beyond the 14 hour limit laid down in the standing orders. He knew they were being subjected to conditioning techniques and physical assaults well before Baha’s death, but did nothing to stop this. He repeatedly downplayed to the court martial and this inquiry his knowledge about what was going on in the detention building. Sir William found his actions to be wholly unjustified and unacceptable.
  • Lieutenant Craig Rodgers ~ now retired from the army but never the subject of criminal charges ~ was the platoon commander, whose multiple carried out some of the most violent assaults on the detainees, in what Sir William has described as “a free for all”. The Inquiry found that Rodgers must have known of the violence that his multiple were perpetrating on these prisoners. He lied to the Inquiry in denying such knowledge. Sir William has concluded that Rodgers bears “a significant responsibility” for this “disgraceful breach of discipline”. He also found that had Rodgers taken action when he first knew what was going on Baha would almost certainly not have died.
  • Finally, Colonel Jorge Mendonca was the commanding officer of the Battle Group. He had the ultimate responsibility for ensuring that detainees were treated humanely. He knew that conditioning techniques were being used. And yet he allowed his soldiers to implement them although they had no training, no written guidance and no proper supervision. The report underscores the very significant failure on his part in this regard. Sir William has also found that Mendonca fostered in his regiment a so-called “robust” approach to dealing with Iraqis which he should have realised could spill over into violent prisoner handling. In fact it led to what the Inquiry describes as a “severe breakdown in military discipline”. Even after the death of Baha Mousa, Mendonca maintains that he did not go into the detention building to look at the prisoners himself. By this final act of omission Mendonca therefore condemned the detainees to an additional 12 hours of suffering and further abuse.

My final observation is that the acquittal of the soldiers by the Court Martial – that is Mendonca, Peebles, Davies, Stacey, Fallon and Crowcroft is a profound injustice, as is the acquittal of Donald Payne of the manslaughter charge. Moreover the fact that other soldiers ~ such as Rodgers ~ were neither charged with offences nor otherwise disciplined also remains an injustice. In the light of the cogent and serious findings by Sir William Gage we now expect that the military and civilian prosecuting authorities of this country will act to ensure that justice is done.

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PHIL SHINER

I strongly echo those last remarks and emphasise that prosecutions in a civilian court are an absolute imperative. I want to say one last thing about the incident itself, by giving two further examples of men turning a blind eye. They illustrate what Sir William has described as the “lack of moral courage”.

One is the regimental medical officer Dr Derek Keilloh, who having pronounced Baha Mousa dead did nothing to report the multiple injuries on his body that were seen by all of the junior medics standing around the same body. He claimed to have seen no more than some dried blood under the nostril. Sir William has found that he must have been aware of the many more serious injuries. Within an hour of Baha’s death, Keilloh saw two of the other detainees. They complained of being beaten and were in extreme pain. Keilloh did not report their complaints to anyone, his notes of the consultation are now lost, and he sent both men back into the detention building without going there himself. I can tell you that the General Medical Council have decided to hold a 30 day hearing into this case in 2012.

Peter Madden was the Padre, a Catholic priest acting as Chaplain to the Regiment. He knew that the stress positions were being used. Sir William has not accepted his Inquiry evidence, which was given under oath. He has found that Madden went to the detention building and must have seen the “appallingly squalid conditions”. An officer and Priest of the Catholic Church saw features of the ill treatment in this case and should have intervened or reported it up the chain of command. He did not find the courage to do either. Again I can inform you that the appropriate Church authorities will be examining this case.

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I want to end by dealing with Sir William’s findings about the systemic context in which the events at BG Main took place.

The first thing to emphasise is that the suggestion in the press before the report was published that Sir William would find no systemic responsibility for these events was completely wrong. And it was typical of the shameful approach taken by the MOD over the last 8 years to these extremely serious matters. Sir William finds that a whole catalogue of systemic deficiencies both before and during the occupation of Iraq contributed to these events. I give just 4:

First and foremost, there was a significant failure to plan for this conflict and its implications for prisoner handling. Time and again Sir William highlights what he calls “historic failures”, a “series of corporate failings and missed opportunities” and “corporate responsibility” which the MOD must bear.

Second, Sir William refers to systemic failures in training and policy “shortcomings” which may have contributed to the process of unlawful conditioning. There was “wholesale lack of MOD doctrine” in relation to interrogation. Policy had effectively not been looked at since 1997 - and before then not for more than two decades. We cannot find a military lawyer who audited the training or the doctrine until several months after Baha Mousa’s death. The damning conclusion by Sir William is that “The MOD did not have a grasp on or adequate understanding of its own interrogation policy”.

Third, when issues such as hooding, stress positions and appalling ill-treatment of Iraqi civilians arose in the first phase of the war, the intelligence community defended the actions to a large extent and had the support of some lawyers who were not prepared to condemn the techniques even though they took no steps to actually discover what they entailed. This is an example of over-deference to the intelligence community as “subject-matter experts”.

Fourth, the Government responded to emerging complaints from the Red Cross, Amnesty International and Members of Parliament, with what Sir William has found to be “an unsatisfactory pattern of too many inaccurate assurances and explanations”. He concludes that many of the difficulties (including some statements about hooding that were misleading) stemmed from what he calls a corporate approach of overly defensive lines in response to difficult questions.

Of course, Sir William Gage’s inquiry has only made us wiser up to September 2003, because he could not investigate any further complaints beyond that time, and even before that time, did not focus in depth on any incident save the Baha Mousa incident. He finds, however, that this was clearly not a “one off”. There is a case called Ali Zaki Mousa currently before the Court of Appeal that will determine whether the United Kingdom should fulfil its legal obligations by holding an extended inquiry into 150 additional complaints by Iraqi civilians that traverse the period from March 2003 to December 2008. Some of the allegations involved more of the same techniques in other regiments and other locations. But they also involve a range of additional violent and humiliating practices.

Again, a single inquiry now into the UK’s detention policy in Iraq is an absolute imperative. We all need to know what went wrong, and why, so that we can be assured such appalling actions can never be repeated in the future.

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Sir William makes 73 recommendations. Of those we particularly welcome his conclusions that hooding and the harsh technique as a form of tactical questioning should never be used in any circumstances.[2] Moreover, we strongly support Sir William’s suggestions that a system of independent (that is civilian) inspection of places of detention should be developed, and that there should be a regular independent review of the relevant doctrine and training materials. It is time for civil society and military society to work together.

1

[1] Colonel Daoud Mousa will be in London next Tuesday night to introduce a memorial lecture in the name of his son that PUBLIC INTEREST LAWYERS are organising in his honour.

[2] There is DVD now in the public domain that demonstrates the ‘harsh’ technique.