The Court of Appeal (Maurice Kay LJ, Sullivan LJ and Pitchford LJ) has today handed down judgment in the case of R (Ali Zaki Mousa) v Secretary of State for Defence. The judges held that the independence of the Iraq Historic Allegations Team (IHAT) is ‘substantially compromised’ by the involvement of the Royal Military Police (RMP) in the detention of Iraqi civilians. It has ordered Philip Hammond, the Secretary of State for Defence, to rethink how 100s of allegations of torture and unlawful killing are to be investigated.
The claim was brought on behalf of over 100 Iraqis by a lead Claimant, Ali Zaki Mousa, who was detained by British forces on 16 November 2006 and was interned until November 2007. He alleges that he suffered violence and wide ranging ill-treatment (as described in his attached witness statement) at the hands of British forces. The Court was shown overwhelming evidence that his abuse was not an isolated incident, but arose out of widespread and systemic practices such as the use of sexual humiliation and physical and psychological torture during prolonged interrogations lasting over 30 days. The Government has accepted throughout that the Iraqis raise “arguable” claims of having suffered torture and inhumane treatment and an “arguable” claim that the abuse was systemic (see paragraph 7 of the Judgment).
The claim was issued in February 2010 seeking a public inquiry. In response, the Government set up the Iraq Historic Allegations Team comprising civilian investigators and members of the RMP, reporting to the Provost Marshal (Army) (head of the RMP). That was not accepted as adequate by Mr Mousa, who argued that the RMP could not be considered independent of the soldiers suspected of abuse.
The claim failed before the High Court in November 2010 but permission was granted to appeal to the Court of Appeal. On considering a substantial amount of evidence related to the role of the RMP and Provost branch in protecting the welfare of those detained by British forces, the Court of Appeal said that (para 36) “it is impossible to avoid the conclusion that IHAT lacks the requisite independence.”
It said (para 36):
The problem is that the Provost Branch members of IHAT are participants in investigating allegations which, if true, occurred at a time when Provost Branch members were plainly involved in matters surrounding the detention and internment of suspected persons in Iraq. They had important responsibilities as advisers, trainers, processors and “surety for detention operations”. If the allegations or significant parts of them are true, obvious questions would arise about their discharge of those responsibilities. SIB [Special Investigations Branch RMP], GPD [General Police Duties RMP] and MPS [Military Provost Staff of the Provost Branch] members would all come under scrutiny. Moreover, the [Provost Marshal (Army)] himself and his predecessors would also be likely to be called to account, given his position as head of the Provost Branch and the nature of his responsibilities in Iraq as Brigadier Forster-Knight has described them. It is, of course, to him that IHAT is required to report.
The Court of Appeal has said that “It will be for the Secretary of State to reconsider how the Article 3 obligation should now be satisfied.” It is the view of the Claimants that they should now succeed in their long awaited call for a judge led public inquiry.
Phil Shiner, solicitor, of Public Interest Lawyers said today:
The court has found that IHAT’s practical independence is ‘substantially compromised’. There must now be a judicial inquiry into the UK’s detention policy in SE Iraq. It is something we have been calling for since 2004. The MoD has deployed every dirty trick in the book to prevent accountability for the 100s of torture and unlawful killings cases of Iraqi civilians. Now it has nowhere to hide.
Lincoln Journal Star
Times of India
The Hindu Times
Radio Free Europe
Radio New Zealand
Business Recorder (Blog)
Al Arabiya News
Ellesmere Port Pioneer
UK Human Rights Blog