Strasbourg has ruled that Britain failed to investigate civilian killings in Iraq. This must never happen again.
Britain's participation in the invasion and occupation of Iraq continues to make history, in somewhat unexpected ways. Today the European court of human rights issued two landmark rulings on UK abuses in Iraq. In the first (al-Skeini and others) it found that Britain had violated the rights of the families of four Iraqis killed by British forces (and one other case in which responsibility for the killing is disputed) by failing to ensure independent investigations into their deaths. In the second (al-Jedda) it ruled the UK had violated the rights of a man it had interned for three years without trial or any real opportunity to challenge his detention, on vague grounds of security. The rulings will have an impact far beyond Iraq.
First, the court has made clear that Britain's human rights obligations do not end at its own borders. The UK has been playing a very aggressive role for years in trying to limit the effect of international human rights law, and specifically has argued in case after case that human rights law does not apply to the acts of its forces overseas, even in situations - as in Iraq - where it was the occupier and in control of security. It suggested that to require British forces to apply human rights principles to Iraqis would be to apply "culturally alien standards".
Even the law lords had been confused. They found the government responsible for the death of one of the victims because he was killed by British soldiers in custody. But they then went on to rule, in effect, that human rights protections in Iraq stopped once you stepped out of the prison gate and that the UK had no obligations to those shot in the street or in their home. The ruling at Strasbourg today, in clearing up confusion and saying British forces were responsible in all the cases, goes a long way toward ending such double standards.
More than that, the two rulings go to the heart of the extensive allegations of abuse by the military acting as police in Iraq - the lawlessness around the military's detentions and extrajudicial killings. In Iraq, refusing to learn lessons from Northern Ireland or anywhere else, British forces made extensive use of internment - picking up people on vague grounds of 'security', and then locking them up for years not just without trial, but without ever seeing a judge or the evidence against them.
In ruling this practice a human rights violation, the court has rejected the government's attempt to say it was not the UK that was responsible but the UN, and even that the UK was required by a security council resolution to intern people. The court simply looked at the facts. It saw that it was British forces who locked people up, and - far from requiring internment - that the UN itself objected regularly to its widespread use, leading the court to rule that it was the UK that was responsible.
The ruling on the inadequacy of the investigations into killings makes clear that such investigations need to be conducted by people who are fully independent of those being investigated - in this case, the military chain of command. One of the alarming facts about the ever-increasing number of allegations of serious abuse by British forces in Iraq is how few were investigated, yet alone prosecuted, even when the evidence of wrongdoing was very strong. The court stressed, as even the government acknowledged in several of the cases, that the investigation system in which the military commanding officer had a large degree of control was not independent.
The current UK government was not, of course, in office when the abuse took place. It now has been given a golden opportunity by the European court to make a clear break from the abuses of the past. It should start by accepting that international human rights law applies to the acts of its forces and officials everywhere in the world, especially where they are detaining people. It should ensure that any forces detaining people do so in accordance with basic law - only for a clear legal reason and in a situation in which the detainee is brought regularly before a judge and is able to challenge the reason for the detention.
The previous government did begin some changes in military prosecutions. But this government should recognise the need for a fundamental transformation of the military justice system. The new system should ensure that any allegation of abuse, unlawful killings or other serious crimes by British forces, wherever in the world they take place, are investigated by a police and prosecution service fully independent of the chain of command - and independent of politicians as well. Instead of fighting and losing case after case, the government should acknowledge the extent of the human rights violations that have taken place, and ensure that they do not happen again.
*Clive Baldwin is a senior legal advisor to Human Rights Watch*