We have enormous sympathy and the greatest respect for those who have acted with such determination and industry on behalf of the claimant; the case has been conducted on behalf of the claimant with great skill and very considerable restraint and economy….They have substantially succeeded on the issue… and in that success they have sustained a very important public interest under the Convention that otherwise might have gone by default.  We cannot stress too highly our indebtedness to the claimant’s legal team and the necessity for the highest quality of legal representation in cases involving such difficult issues relating to important matters of real public interest.  R (Ali Zaki Mousa (No.2)) v Secretary of State for Defence [2013] EWHC 2941(Admin). Judgment dated 02.10.2013

Rt Hon Sir John Thomas and Honourable Mr Justice Silber
 
 

HIGH COURT RULES IN HUNDREDS OF IRAQI UNLAWFUL KILLINGS AND TORTURE CASES

24/05/2013
The High Court (Sir John Thomas, President, Queen’s Bench Division and Mister Justice Silber) has today handed down a judgment dealing with the future public hearings in nearly two hundred unlawful killings of Iraqi civilian cases and up to eight hundred cases of torture and cruel inhuman degrading treatment (CIDT) of Iraqi civilians. There will now be a public process leading to hundreds of public hearings in what will be to all intents inquests in each individual case and a public examination of all systemic issues arising from these cases.  Although this is a very British judgment, utilising the model of coroners’ inquests that is more than 800 years old, it responds to a duty under international human rights law that will enable the United Kingdom to lead the world in properly protecting civilians in times of war.

 

In March 2010 the Secretary of State for Defence (SSD) established the Iraq Historic Allegations Team (IHAT) to deal with all killings and torture cases involving UK personnel in Iraq. In November 2011 the Iraqi claimants represented by Public Interest Lawyers (PIL) succeeded in the Court of Appeal in establishing that IHAT was not independent as many of their staff were Royal Military Police (RMP) and the RMP were intrinsically bound up with the cases IHAT was tasked to investigate. In March 2012 the SSD responded to the Court of Appeal judgment by replacing the RMP staff with civilian contractors and five Royal Naval Police personnel. The Iraqi claimants continued to argue in fresh proceedings, now the subject of this judgment, that the IHAT process did not comply with all the requirements of various European Court of Human Rights Cases on what a European state must do to comply with Article 2 of the European Convention on Human Rights (ECHR) (The Right to Life) and Article 3 ECHR (The Prohibition on Torture and inhuman and degrading treatment). The requirements of the European Court cases are not limited to the views of its judges alone. They are reflected in domestic and international case law from around the world that in the last 30 years have established minimum requirements for investigating credible allegations of unlawful killing and other torture or ill-treatment.  

 

The claimants were concerned that IHAT’s approach to unlawful killings (including various deaths in custody) was inadequate: issues of delay, lack of any prosecutions, the lack of involvement of relatives, the lack of any public participation, the complete failure to examine issues of the planning and preparation for the relevant military operations, and the failure to deal with systemic issues in the public domain. On the torture cases the Iraqi claimants had broadly the same concerns compounded by a decision of the Director of Services Prosecutions (DSP) in one lead torture case that no British interrogators could be prosecuted as they were merely following their training from the Defence Intelligence and Security Centre at Chicksands and thus their defence to any prosecutions would be that they were following orders.

The High Court has today ruled as follows:-

1.       That all death’s cases should now be subject to a public “inquisitorial process”  and that “the establishment of IHAT and the arrangements associated with it are not sufficient to discharge the duty imposed on the state” (para 179);

2.       That was is required in all death’s cases pursuant to Article 2 ECHR is a “full, fair and fearless investigation accessible to the victim’s families and to the public into each death, which must look into and consider the immediate and surrounding circumstances in which each of the deaths occurred” (para 148);

3.       That in two death’s cases where there have already been decisions not to prosecute any UK personnel there is no impediment to starting the public inquisitorial process now (paras 154-157);

4.       That in all other cases “an order should now be made that the Secretary of State should state either through an official or the Head of IHAT within six weeks:

                                                               i.      What further progress has been made in investigating the deaths of each of those who fall in this category;

                                                             ii.      When a decision will be made as to whether a prosecution will be brought in respect of each of these cases” (paras 164 and 167);

5.       That in all cases the subject of this “inquisitorial process” new guidelines as to how these public enquiries might be conducted are the subject of the court’s guidelines (paras 213 – 225) upon which both the SSD’s lawyers and the claimants’  lawyers are invited to make submissions (para 233);

6.       That in all torture and CIDT cases the DSP should be properly involved now and that it “must surely be possible to make a realistic appraisal in a number of cases whether prosecution is a realistic possibility and use that as a basis for future decision-making, given the volume of cases that arise” (para 228);

7.       That in all torture and inhuman and degrading treatment cases “once it is determined that there are cases in which there will be no prosecution, the procedure for Article 3 cases should be reviewed by the Secretary of State in the light of the experience in the Article 2 cases; it may well be possible to conduct the inquisitorial enquiry into these cases by taking a sample of the more serious cases” (para 230). Further if “the procedure cannot be agreed, then the court will have to consider these issues further under the provision we propose making in the formal order of the court” (para  231), that is, the court will maintain a supervisory role going forward in all of the torture and CIDT cases.

 

 

The court have decided that IHAT does not lack independence (para 232). Thus it may continue its work but only subject to three major limitations.

 

1.       All death cases must now be the subject of this new inquisitorial process. The court found as follows:- “we have reached the conclusion in relation to cases where deaths have occurred that the establishment of IHAT and the arrangements associated with it are not sufficient to discharge the duty imposed on the state” (para 179).

2.       IHAT is neither charged, nor structured nor staffed to consider and report publically on all the systemic issues arising from these one thousand or so cases and the court found that the SSD’s system of dealing with systemic issues in private is not lawful. In particular it found that “The absence of this capability is particularly significant because in this case the case for public investigation becomes greater where there is ‘an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but a pattern or system’” (paras 192 – 194).

3.       The Court therefore found that “the steps taken in the Ministry of Defence to deal with wider and systemic issues” are “not public or subject to independent scrutiny” (para 195).

 

On the torture and inhuman and degrading treatment cases IHAT may continue to investigate subject to the court’s urging that it must now make decisions quickly with the DSP as to whether there should be prosecutions. In all torture and CIDT cases where there are not to be prosecutions there must be an “inquisitorial process” (paras 228 – 231).

 

Thus, after ten years or more since the first of these deaths and other cases, these one thousand or so unlawful killings and torture/ill-treatment cases must now be the subject of a public inquisitorial process to examine in public all the circumstances of each case and for there to be a public process of reporting and recommendations as to reform.

 

Phil Shiner of Public Interest Lawyers said today: “The court has expressed its very serious concerns about allegations in these cases of the most serious kind involving murder, manslaughter, the wilful infliction of serious bodily injury, sexual indignities and cruel, inhuman and degrading treatment. It has found that the Ministry of Defence have not complied with international and domestic law requiring there to be proper public scrutiny of these cases and the systemic issues arising from them. My clients welcome the public inquisitorial process that will now follow. I trust that the various and troubling systemic issues emerging from these cases will lead to further reforms following the Baha Mousa Inquiry report of September 2011. The Secretary of State must ensure that UK Forces abroad respect and apply the rule of law”.

 

 

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