Important decision on Iraq ill-treatment

Richard Carver writes:

I sat down this week to write a blog post about the new UK Torture Prohibition Network – an important topic, but one that will now have to wait until the New Year. (I am, however, illustrating this post with a picture from the public forum that followed the launch of the network in London last month.) The reason for changing topic was an extremely important judgment this week in the High Court in London. Mr Justice Leggatt found in favour of four claimants who alleged that they had been ill-treated by British troops during the occupation of Iraq.

Torture in the UK - public event to launch the Torture Prohibition Network

(l-r) Sir Malcolm Evans (Bristol University), Carla Ferstman (REDRESS),

John Wadham (National Preventive Mechanism), and Tom Pegram 

(University College London)

Last year, Lisa Handley and I published our book on torture prevention, which included a case study of the United Kingdom. The UK actually offers a generally positive lesson. Thirty years or so ago, torture, if not rife in the British criminal justice system, was certainly more than occasional, while less severe forms of ill-treatment were widespread. This picture has been changed as a result of radical reform, most importantly major improvements in criminal procedure and changes in interviewing techniques. There are now duty solicitors in police stations and all interviews are electronically recorded. Much less reliance is placed on confession evidence. This is all backed up by an effective system for monitoring detention and imprisonment and, of course, peace and fundamental police reform in Northern Ireland.

The big exception to this generally positive picture has been the behaviour of British forces operating outside our borders, notably in Iraq and Afghanistan. Although offshore places of military detention should be subject to a similar monitoring regime, in practice they are not. The notorious “five techniques” of sensory deprivation, used by the British army in Northern Ireland in the 1970s and ostensibly prohibited after that, resurfaced in Iraq. This first came to attention in the case of Baha Moussa, the Basra hotel receptionist beaten to death by British troops.

The four cases decided by the High Court this week are the first “lead cases” out of several hundred similar claims of ill-treatment by Iraqi civilians who were detained by British forces. Mr Justice Leggatt ordered the Ministry of Defence to pay compensation to the four men for treatment that included forced nudity, sexual humiliation, cigarette burns, sleep deprivation, and hooding. In one case, troops had run over the backs of detainees. The treatment “involved the gratuitous infliction of pain and amusement for the amusement of those who humiliated them.”

The claims were grounded on the twin legal bases of English common law and the Human Rights Act (which is the enactment of the European Convention on Human Rights into British law). Mr Justice Leggatt found that the men’s Convention rights had been violated, but also made repeated references to the military’s breaches of their obligations under the Geneva Conventions and international humanitarian law (or the law of armed conflict). The British government has suggested that in future conflicts it will derogate from the European Convention, so that it is not obliged to respect the human rights of civilians (or indeed of British personnel). This is legally illiterate – it is not possible in any circumstances to derogate from Article 3 of the Convention, which protects against torture and other ill-treatment. However, this case is a reminder that it is also somewhat beside the point, since the Geneva Conventions embody basic standards of humane behaviour – including torture prohibition – precisely in situations of armed conflict.

While these cases – and possibly more to come – offer the prospect of some limited financial redress for the victims, they do not bring accountability of those responsible. However, there is some positive news on that front too. The prosecutor of the International Criminal Court recently announced progress in the preliminary investigation of a large number of cases of alleged ill-treatment by British personnel in Iraq, concluding that there is a “reasonable basis” to believe that they committed “war crimes” including murder, torture, outrages upon personal dignity, and rape or other forms of sexual violence.