Statement by RABINDER SINGH QC to the Baha Mousa Public Inquiry
RABINDER Singh QC has delivered his opening statement to the Baha Mousa Public Inquiry, into the murder of the Basra hotelier following the British army’s invasion of southern Iraq in 2003.
It is six years since Baha Mousa died, on September 16, 2003, with at least 93 injuries recorded by a post-mortem examination of his body.
Singh, the counsel for Baha Mousa’s family, said at the official inquiry in London: ‘The people of Britain value freedom above all else.
‘They have a long and honourable record of opposition to all forms of physical cruelty.
‘With those words Peter Benenson, the founder of Amnesty International, began Amnesty’s 1966 report into the abuse of prisoners by British forces in Aden (PIL000890).
‘Techniques used in Aden and other colonies were then used in Northern Ireland during internment in 1971.
‘They were banned as aids to interrogation by the Heath Government in 1972 in an undertaking given to Parliament.
‘In 1977, in the case of Ireland v UK, the Attorney General told the European Court of Human Rights that they would never again be used.
‘Yet in 2003 the so-called “conditioning” techniques were used in Iraq on civilians in the name of the people of Britain.
‘Stress positions; hooding; sleep deprivation; food deprivation and noise all came back. Perhaps they never went away – that will be a question for this Inquiry to investigate.
‘Baha Mousa, whose name rightly appears in the title of this public inquiry, was a car trader and hotel receptionist, just 26 years old.
‘He had, just months earlier, lost his young wife to illness. They had two young sons, now left as orphans.
‘On 14 September 2003 Baha was taken into custody, a healthy young man, and subjected to beatings over 36 hours which left 93 separate injuries.
‘He died the following day. His father, Col. Mousa, still grieves for his son and will be here later this week to seek justice at this Inquiry.
‘Baha was a human being, yet to his guards he was known as “Fat Boy” or “Fat Bastard”.
‘His last moments are described in the witness statement of D002, at paragraph 54: “Baha Mousa was in the same room as us on the first day but during the second day he was taken to another room. I could hear him and it sounded like he was in the next room.
‘ “During the evening of the second day, I heard Baha Mousa screaming, ‘Oh my God, I’m going to die, I’m going to die. Leave me alone. Please leave me alone for five minutes. I am very tired. I am going to die’. He was screaming all the time and I heard him many times.
‘ “I could also hear the soldiers shouting at him in English . . . Baha Mousa was shouting, ‘just let me rest for a minute or two’ . . . After the screaming stopped I did not see or hear Baha again, but I did not yet know that he was dead.” (BMI01963 R)
‘Kifah Taha Musa Mutairi was also a human being, an electrician, but to his guards he was known as Grandad.
‘He was beaten to within an inch of his life. This resulted in him having acute kidney failure.
‘The others detained at BG Main were also beaten. They were people like us; all human beings.
‘As such, they were entitled to basic human rights: human rights flow from our common humanity, our recognition that others can suffer as we do.
‘Yet to British soldiers Iraqi civilians were routinely known as “Ali Babas”.
‘The detainees were not terrorists or insurgents. They were never tried or convicted of any offence.
‘They were eventually released after an unnecessary time in detention without even being charged.
‘This was not in any view the sort of “ticking bomb” scenario that apologists for torture usually imagine when they contemplate the possibility of legalising torture.
‘So it is that there is a path which leads from such clinical musings in ivory towers to a man dying in a filthy latrine in Iraq.
‘At the opening of this Inquiry on 13 July we saw a video in which Cpl. Payne was handling some of the prisoners, including Baha Mousa.
‘The public around the world was shocked by what it saw on that video.
‘Yet the official version of events was that nothing on that video was in fact illegal.
‘What we saw on that video was a soldier trying to implement official policy: forcing detainees to get back into stress positions when they were clearly moaning and unable to maintain those positions.
They are all shown hooded – again in accordance with orders and again illegal.
‘True it is that, in scenes which are not on that video, soldiers went too far even compared to what they were supposed to be doing.
‘But it is important not to fall into the trap of thinking that this case was simply one of indiscipline.
‘This case is not just about beatings or a few bad apples. There is something rotten in the whole barrel.
‘Even the word “conditioning” is chilling – it is a euphemism for torture.
‘The techniques are illegal under human rights law; illegal under humanitarian law; and illegal under the common law.
‘They constitute assaults, as the Parker Report recognised in 1972 – not just the minority report by Lord Gardiner but the majority report too.
‘There may be apologists before the Inquiry who will try to belittle what happened by suggesting that the illegal techniques are not as bad as electric shocks or pulling out fingernails.
‘But anyone who thinks that the imposition of stress positions is not painful should try to adopt the ski position used on my clients in BG Main – they will find that even the fittest of people cannot maintain it for more than a few minutes without pain – all the more humiliating because it is inflicted by the body on itself.
‘Sleep deprivation is one of the oldest forms of torture.
‘There are not many lawyers or judges who have had to endure it but I would like to quote from one who has, Albie Sachs, who is now a Judge on the Constitutional Court of South Africa and was detained without trial under the apartheid regime.
‘His account complements those you will hear from my clients during the course of this Inquiry: “ . . . I was detained again and subjected to what I call torture by sleep deprivation.
‘ “Keeping me up through the day, through the night, with a team of interrogators shouting at me, banging the table for ten minutes, replacing each other, rotating all the time . . . And the next morning my body is fighting my will, my mind.
‘ “The desire to sleep, to collapse, is just overwhelming.
‘ “I know of people who held out for four days, for five days or seven days, and the longer they had held out, the more they had ultimately broken.” [PIL000892]
‘We suggest in our Written Opening that it is precisely because techniques such as hooding, stress positions and sleep deprivation do not leave marks that they tend to be adopted by democracies.
‘We gratefully adopt the analysis by Prof. Rejali in his book Torture and Democracy and commend it to the Inquiry – that democracies such as the UK use techniques which have become known as “stealth torture” or “clean torture” precisely because our societies are subject to the rule of law and to public scrutiny.
‘These methods enable torturers to deny their practices to the outside world – and to some extent to themselves – but the pain caused by these practices is manifest by the extent to which the victims still suffer for having been subjected to them.
‘In Ireland v UK the conditioning techniques as used in Northern Ireland were held by the European Commission of Human Rights to constitute torture; but regarded as inhuman treatment by the Court.
‘Today there can be little doubt they constitute torture, not least because of the authoritative definition of that term given by the UN Convention against Torture, which was adopted in 1984:
‘ “For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for purposes such as obtaining from him or a third person information . . . when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official. . . ” (Article 1(1) UNCAT) [PIL000881]
‘One of the important issues which this Inquiry will investigate in Module 3 is the legal confusion which appears to have afflicted the military and the Government.
‘That legal confusion can be illustrated by looking at this book, the MOD Manual of the Law of Armed Conflict [MOD036232].
‘The entire text is said to have been read by Sir Michael Wood (legal adviser to the FCO) and Martin Hemming (legal adviser to the MOD) and its editors include Prof. (now Sir) Christopher Greenwood.
‘Yet this book does not mention Ireland v UK. It does not mention the specific ban on the five techniques.
‘The index does not even mention Article 3 of the ECHR. It does not mention UNCAT.
‘On its face, this book is about International Humanitarian Law only.
‘It is said that the original Oxford English Dictionary took 50 years to complete. This Manual took nearly 50 years to write.
‘But it is as if the OED had stopped half way through the alphabet – this work does not cover human rights law or even the common law, both of which apply to the armed forces of this country.
‘Imagine if these techniques were used on a British soldier captured by a foreign state – there could be no doubt that the conditioning techniques would be a breach of the Geneva Conventions, which are part of International Humanitarian Law.
‘Yet our own soldiers and their legal advisers got side-tracked from this basic truth by esoteric arguments about whether the ECHR applied in Iraq.
‘Even if the ECHR did not apply to the present cases it should have been obvious that the techniques were illegal.
‘But as it happens the ECHR did apply, as the Government now accepts and has accepted since early 2005.
‘However, it vigorously resisted that suggestion in 2003 when these events took place and in 2004, when Col. Mousa and others brought their cases to the High Court in the case of Al-Skeini.
‘An important question for the Inquiry to explore will be to what extent this legal confusion contributed to creating a space in which abuse could take place in Iraq.
‘The importance of the law in preventing torture was emphasised by Lord Hope in A (No.2):
‘ “Torture, one of the most evil practices known to man, is resorted to for a variety of purposes . . . The lesson of history is that, when the law is not there to keep watch over it, the practice is always at risk of being resorted to in one form or another by the executive branch of government.
‘ “The temptation to use it in times of emergency will be controlled by the law wherever the rule of law is allowed to operate.
‘ “But where the rule of law is absent, or is reduced to a mere form of words to which those in authority pay no more than lip service, the temptation to use torture is unrestrained.” [PIL000884]
‘It is almost a first principle of human rights protection around the world that there tends to be a causal connection between the absence of procedural safeguards and the occurrence of abuse of prisoners.
‘Procedural safeguards should include the right to inform family or friends of where you are; the right to see a lawyer; the right to be assessed and treated by an independent doctor; and the right of access to an independent court.
‘All these features were absent in Iraq – not by accident but by design.
‘That situation emerged after consideration by lawyers, civil servants, ministers and the Attorney General (Lord Goldsmith) himself. Not all agreed with it – Lt. Col. Mercer did not but he was overruled.
‘One of the striking features of the terrible events at BG Main in September 2003 is that the abuse did not take place in a secret dungeon, behind closed doors.
‘The Temporary Detention Facility was open to the outside.
‘Many people must have seen or heard what was going on.
‘Many seem to have visited the TDF. These included the Commanding Officer, the Adjutant, the Tactical Questioners, Provost staff, medics, even the Padre.
‘Others could have visited – the Royal Military Police or even the Red Cross, yet none of this seems to have deterred the assailants from attacking the detainees.
‘This gives rise to serious questions about the professionalism of the outfit and whether the culture was one of impunity.
‘It also gives rise to serious questions about the capacity of the Regiment’s members to question and challenge abuse.
‘Reference has been made to the courage of soldiers doing a difficult job. But another kind of courage is also needed apart from physical courage: to speak up for what is right and expose what is wrong.
‘As Robert Kennedy once said: “moral courage is a rarer commodity than bravery in battle.”
‘There has been torture carried out by other democratic states, including the US and Israel, but there has never been a truly public and independent inquiry into practices at Abu Ghraib or the Palestinian Occupied Territories.
‘In the context of Northern Ireland, the Parker and Compton Inquiries were neither public nor truly independent.
‘This Inquiry is both public and independent. It offers a strikingly new opportunity for lessons to be learned – not just by the Army but by wider British society and the international community.’