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Beyond Baha Mousa

The implications of Mousa's death in British custody stretch wider and higher up than the inquiry has been able to reach

Published in: The Guardian (UK)

The name Baha Mousa has become the most famous in the history of abuses by the British army in Iraq. Thursday's publication of the report of the inquiry into his death in British custody in Basra in 2003 is a remarkable conclusion to the persistent efforts of his family and their representatives. The report's condemnation of the leadership, loss of discipline and moral failings of the 1st Battalion the Queen's Lancashire Regiment in Iraq and comprehensive recommendations on the banning of hooding and stress techniques are to be welcomed. But to prevent future cases, the British government needs to acknowledge the wider implications of Mousa's death, which the inquiry has only touched on.

Most important is acknowledging that this was not an isolated incident. Later this year another inquirywill begin to look into the alleged torture and killing of up to 20 people in British detention in May 2004. Last year, the lawyers for Mousa's family applied for a general public inquiry into the treatment of over 140 people in Iraq, offering detailed allegations of abuse. The government's response was to set up an "Iraq historic allegations team", but it has said that its report will not be ready until 2012 at the earliest.

The killing of Baha Mousa illustrates three key problems with military detention. First is the general lawlessness around detention by the British army. By denying that international human rights law applied to the British army, the then government authorised British forces to detain Iraqis when they wanted, for almost any reason, and for as long as they wanted. The government denied there was any requirement to bring all detainees in British custody before a judge, a critical step to ensure the legality of detention and avoid abuse.

The new government has maintained that position. Despite losing a related case in the European court of human rights earlier this year, it has yet to announce that it accepts the need for its forces to abide by human rights law anywhere in the world.

The second issue is the failure to ensure criminal accountability of those responsible for abuses. The government has explicitly acknowledged British responsibility for Mousa's death and paid compensation to his family. It would have been difficult to deny responsibility: he was healthy when taken into British custody, but died there with, as the inquiry found, multiple injuries from beatings. A postmortem showed Mousa had at least 93 injuries, including a broken nose and fractured ribs.

But despite this, only one person has been convicted in connection with his death, Corporal Donald Payne, who pleaded guilty to inhumane treatment (a war crime) and was sentenced to one year in prison. A fundamental reason for this accountability failure, was that those responsible for criminal investigations, and prosecutions, were within the military chain of command. Creating a fully independent system of military policing and prosecution is vital.

The final key failure was not holding those in positions of authority accountable. It is perhaps not surprising that a corporal was the only person punished. The laws of war, which the British government promotes elsewhere in the world, states that those in a position of authority who knew or should have known about a serious offence and failed to prevent it, or to hand the matter over for prosecution, are themselves guilty of crimes.

Senior officers should have been aware of the abuse Mousa was enduring. The inquiry heard that Mousa and his fellow detainees endured repeated beatings and hooding. Hooding is one of the "five techniques" that the British government said 40 years ago it would never use again and is prohibited by the Geneva conventions. Such acts are not just a few soldiers out of control, but require training and orders. In fact, given the knowledge of abuse in Iraq in 2003, the most senior officers and the politicians ultimately in charge should have been aware of the extent of the abuse that was taking place. There is precious little evidence of any steps being taken to stop it.

This government has two options in responding to the recommendations of this inquiry. It can try to dismiss it as an aberrant case, the responsibility of just one corporal. Then it will face years of inquiries and hearings into case after case. Or it can address the systemic problems the previous Labour government refused to acknowledge – problems that require fundamental reform of military detention and policing, and ensure that those responsible for these crimes, including those in position of authority, are finally held accountable.

Clive Baldwin is a senior legal adviser at Human Rights Watch

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