The Baha Mousa case

Baha Mousa was working as a receptionist in a hotel in Basra on the morning of 14 September 2003 when members of the 1st Queen’s Lancashire Regiment  arrested him and others present and brought them back to their main headquarters in Basra. Those arrested were detained and Mousa died on the evening of 15 September 2003 after being subjected to sustained and brutal treatment by British soldiers. Some of the other detainees were also severely assaulted.

BAHA MOUSA’S STORY 

In 2004 the relatives of six Iraqi civilians killed by UK soldiers in 2003 brought a case in the United Kingdom against the Secretary of State for Defence. They sought a review of the UK Government’s decision not to conduct independent inquiries into the deaths or to accept liability and to pay compensation.

Four of the men had been shot by military personnel, one had allegedly been beaten and forced into the Shatt Al-Arab river, where his body was found. The sixth victim, Baha Mousa, had been seized from a hotel and taken to a UK military base in Basra. Mousa was brutally beaten by British soldiers at the base and he died of his injuries some thirty-six hours after his detention. His father was an applicant in this case.

ACTION FOR JUSTICE

REDRESS intervened in the Divisional Court in 2004, and along with other NGOs also intervened in the subsequent appeals to the Court of Appeal in 2005 and to the House of Lords (Appellate Committee) in 2007. The relatives of the victims argued that both the UK’s Human Rights Act (HRA) and the European Convention on Human Rights (ECHR) applied to the conduct of the UK troops, who had breached article 2 (the right to life) and article 3 (the prohibition against torture) of the ECHR. The interveners made submissions on the practices of states during the occupation of foreign territory that could subvert the rule of law and state accountability and give rise to impunity for grave violations of human rights.

In 2005 the Baha Mousa Inquiry was also established under the Inquiries Act 2005 and chaired by Sir William Gage heard opening statements in July 2009 and concluded oral hearings on 14 October 2010. Its function was to examine the circumstances surrounding the death of Mousa as well as to investigate the use of conditioning techniques used by the British Army during the campaign in Iraq from 2003.

REDRESS made two submissions to the Baha Mousa Inquiry: the first, in May 2009, commented on the modules and areas to be examined and the second submission in September 2010 reviewed the evidence submitted to the Inquiry through the lens of the UK’s obligations under international law.

THE OUTCOMES 

On 13 June 2007 the House of Lords (Appellate Committee) ruled that none of the first five victims, killed as a result of military operations in the field, were under the actual authority and control of British troops at the time of the incidents since they were outside the “legal space” of the signatory states of the European Convention of Human Rights.

However, regarding the death of Mousa, it found that this fell within the UK’s jurisdiction as part of an exception to the general territorial principle which governed the European Convention of Human Rights, given that he died whilst being detained by the British army. Thus the Human Rights Act and the European Convention of Human Rights applied.

The case was remitted to the Divisional Court for reconsideration of whether there had been an adequate investigation into Mousa’s death, and in 2008 the UK settled the damages claimed by Mousa’s father and nine others who had been detained and ill-treated at the same time but had survived. A total of £2.83 million pounds was shared amongst them. During the remitted Divisional Court proceedings, the Government conceded that the Public Inquiry should be established.

The relatives of the five other applicants, whose claims had been rejected by the House of Lords (Appellate Committee), took their case to the European Court of Human Rights (ECtHR). They argued that the UK authorities had refused to conduct an independent and thorough investigation into the circumstances of the killings.

Mousa’s father was the sixth applicant in the case, although given the Public Inquiry into his son’s death he accepted that his right to a full investigation had already been satisfied. On 7 July 2011 the Court ruled that the UK’s human rights obligations apply to its acts in Iraq, and that the UK had violated the European Convention on Human Rights by failing to investigate the circumstances of the killings of the five applicants. The case represented a landmark judgment in the universal application of human rights.

In regards to the Baha Mouse Inquiry, the Chairman published his report on 8 September 2011. The report said that British soldiers inflicted “violent and cowardly” assaults on Iraqi civilians, and that Mousa died after suffering “gratuitous violence”. The Chairman also condemned “corporate failure” at the Ministry of Defence (MoD) over the use of banned interrogation methods in Iraq. He found that there was widespread ignorance of what was permitted in handling prisoners of war and also criticised the absence of any proper MoD doctrine on interrogation.

Even senior commanders were ignorant of a ban imposed in 1972 on the use of five techniques, including stress positions, sleep deprivation and hooding, which were used on Mousa and the other detainees.  The Inquiry, which was limited to a particular battalion in Basra, did not find evidence of systematic torture committed by the British Army and instead singled out a number of soldiers for severe criticism. The Report contained 73 clear recommendations to the MoD.

QUICK FACTS

  • Case name: Al Skeini and others v. Secretary of State for Defence and another
  • Jurisdiction: House Of Lords, European Court of Human Rights
  • Date filed: 12 July 2004 (REDRESS’ first intervention before the Divisional Court)
  • Current status: Decision reached
  • Legal representation: REDRESS, AIRE and others (as interveners)