SECOND IRAQ INQUIRY – into claims of murder & torture after 2003 invasion

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YESTERDAY the Secretary of State for Defence announced in Parliament the establishment of a public inquiry into the incident of alleged mistreatment and murder of prisoners at Camp Abu Naji, a British base in SE Iraq, in May 2004.

This will be the second public inquiry into the mistreatment of Iraqi civilians by British forces: the Baha Mousa Public Inquiry is currently under way. The Secretary of State’s announcement follows two highly critical High Court judgments in the R (Al-Sweady & others) v Secretary of State for Defence proceedings.

In them the Court lamented the Government’s failures to disclose relevant material and the misrepresentation of key evidence by Colonel Dudley Giles, the Deputy Provost Marshall and head of the Special Investigations Branch of the Royal Military Police.

An ensuing BBC investigation uncovered further evidence that the Royal Military Police had failed to investigate many other cases of possible abuse.

The Public Inquiry will examine whether UK soldiers murdered a number of Iraqis and tortured another nine survivors on the night of May 14 2004, throughout which they were interrogated.

Public Interest Lawyers represents six of the nine prisoners and Khuder Al-Sweady, a relative of Hamid Al-Sweady, a 19-year-old alleged to have been killed at the British base. They commenced judicial review proceedings seeking an open and independent investigation into the allegations after years of mishandled and inadequate investigation by the Royal Military Police.

Speaking today, Phil Shiner said: ‘These allegations are incredibly serious yet the Government has continuously delayed dealing with them since they were first made in 2004. Only when the Government reluctantly handed over documents showing that even Tony Blair was to be briefed about the allegations in 2004 and that the Royal Military Police’s investigation had been misrepresented to the Court did the Secretary of State concede the inquiry that my clients have been seeking for many years. At last my clients may get what they have been seeking for so long: the truth.’

On May 14 2004 there was a major firefight at a permanent vehicle checkpoint known as ‘Danny Boy’ on Route 6 (the road between Baghdad and Al-Amara) in Maysan Province, South East Iraq.

On the day following the battle, 20 dead Iraqis were taken in body bags from the nearby British base, Camp Abu Naji (CAN), and handed over to the Iraqi authorities. At this time many Iraqi families demonstrated in public that their relatives had been taken alive to CAN and murdered.

Eye witnesses at the time support this. When the bodies were returned from CAN the next day many Iraqi medical workers, doctors, parents, brothers, wives and others saw the injuries to their relatives and immediately launched complaints in the Iraqi courts. The allegations were reported in the British press within days.

The UK Government, aware of the allegations, of the unprecedented ferocity of the battle, and of the clear signs of mistreatment on the nine survivors (which were the subject of representations by the International Committee of the Red Cross within a week), fundamentally failed to investigate the allegations.

Instead, the Royal Military Police’s investigation carried out in 2004-05 was initially blocked by the chain of command, narrowly circumscribed its terms of reference and failed to consider elemental issues such as interviewing the survivors about the allegations or their mistreatment, failing to seek any forensic evidence, failing to interview many of the soldiers who guarded the men at CAN (some of whom were armed) or those responsible for their ‘tactical questioning’ and failing to follow up both Iraqi and UK witness and communications evidence that a far larger number of prisoners than nine were transported to CAN.

The list goes on. A reopening of the inquiry in 2007 failed to remedy these deficiencies, instead resulting in severe criticisms by the Greater Manchester Police’s peer review of late-2008.

The judicial review proceedings were commenced in October 2007. It was the UK Government’s case that following the battle, all of the deceased Iraqis had been removed from the battlefield to Camp Abu Naji and that no mistreatment of the survivors had occurred. The full hearing before a three judge Divisional Court commenced on April 22 2009, but was forced to adjourn on a number of occasions due to consistently delayed and inadequately explained disclosure of key evidence by the Secretary of State.

On May 15 2009 the Treasury Solicitor and the Forces Provost Marshall appeared in person as witnesses at the request of the Court to explain this state of affairs. On the evening of July 3rd 2009 the Government indicated that it was prepared to concede the key question in the hearing – that all aspects of the incident merit the comprehensive and independent inquiry that the relatives of the deceased had been seeking.

The High Court subsequently handed down two judgments highly critical of the Government’s approach to disclosure and withholding of relevant documents on public interest immunity grounds. The court stated: ‘the approach of the Secretary of State to disclosure in this case was lamentable.’(para 13)

‘We conclude that the Secretary of State’s agents had simply failed for no good reason during that lengthy period to carry out these critically important and obviously highly relevant searches and this failure in our view constitutes a serious breach of their duty to give proper disclosure.’ (para 42)

‘It is deeply regrettable that so much public money and so much court time has been wasted as a consequence of the persistent and repeated failure by the Secretary of State to comply with his duties of disclosure. It is a matter of great surprise and deep disappointment to the court that the Secretary of State still could not be satisfied more than 18 months after this claim was brought that he could give proper disclosure in a case such as the present one with the result that he was obliged to concede defeat and to pay indemnity costs.’ (para 44)

‘We were also disturbed by Colonel Giles’ written and oral evidence. By way of example, in his long witness statement of July 23 2008, he asserted that only nine live detainees were taken to CAN on May 14 2004; this became a significant plank in the Secretary of State’s case in responding to the claim that Mr Al-Sweady had died at CAN and not on the battlefield. Yet Colonel Giles failed to deal with a number of important documents, which were consistent with the contention that more than nine live detainees had been taken to CAN.’ (para 50)

‘We were each of the opinion that Colonel Giles was an unsatisfactory witness and his evidence was seriously flawed. (para 56)

‘If Colonel Giles continues to be put forward as a principal or even a significant witness in judicial review proceeding or if he is in any way responsible for disclosure, it is our view that any Court seized of those proceedings should approach his evidence with the greatest caution.’ (para 60)

‘We cannot part with this case without paying tribute to the claimants’ legal advisers who although greatly outnumbered by the Secretary of State’s legal team have persisted with their requests for disclosure skilfully and with commendable determination.’ (para 67)