The victims
Operation Salerno began at 6am with a raid on a nondescript hotel in Basra.
Baha Musa, 26, was on the reception desk. The date was September 14, 2003,
more than four months after the war in Iraq was supposed to be over.
Soldiers from the Queen’s Lancashire Regiment piled out of armoured Land
Rovers into the foyer of the al-Haitham Hotel and began an aggressive
search, after a tip-off that there was a cache of arms hidden in the
building.
As he did most days, Daoud Musa, a colonel in the Iraqi police, was waiting
outside the hotel to pick up his son and take him home. He was shocked when
Baha Musa emerged from the building in the custody of British soldiers,
along with eight other Iraqi civilians, all of whom had been arrested in
what was called an anti-terrorist and anti-criminal operation.
To this day Colonel Musa regrets what he did next. He went up to the commander
of the patrol and said to him: “That’s my son there, please make sure he’s
OK.” He was reassured that it was just routine questioning.
Later in the day, when his son had still not returned home, Colonel Musa drove
to the British military base in Basra and asked what was happening. He
claimed that he was fobbed off and was given no chance to see his son. When
he did finally get to see Baha, 36 hours later, it was to identify his body.
He said: “When I saw the corpse I burst into tears. I was horrified to see
that my son had been severely beaten and his body was covered in blood and
bruises. He had a badly broken nose. There was blood coming from his nose
and mouth. The skin on one side of his face had been torn away to reveal the
flesh beneath. I could not bear to look at him.”
Baha Musa had suffered 93 injuries and had died from asphyxiation. Over 36
hours he was kicked, punched, mentally abused and forced to endure what the
British Government banned in 1972: he was hooded with two hessian sacks,
compelled to stand upright with his knees bent and arms stretched forward
and deprived of water and sleep. The temperatures in the detention room were
oven-hot.
The eight other Iraqis arrested at the hotel, and a ninth seized later,
received similar treatment. At least two of them needed to go to hospital,
one suffering from kidney damage, but Baha Musa was the only one to die of
his injuries.
The accused
There was never a proper explanation given why these nine Iraqis were so
grossly mistreated. Their arrests had occurred at a time when Basra was
highly dangerous and insurgent attacks on British soldiers were increasing
by the day.
The Queen’s Lancashire Regiment had endured a torrid tour and one of their
own, Captain David Jones, 29, a popular officer, had been killed only a
month before in a bomb attack on a military ambulance. Rumours were rife
that the detainees were insurgents and might have had a hand in his death
and those of several soldiers from the Royal Military Police.
In September 2006 seven soldiers faced a court martial over Baha Musa’s death.
On trial at Bulford Camp in Wiltshire were Corporal Donald Payne, charged
with the war-crime offence of inhumane treatment of prisoners, as well as
manslaughter and perverting the course of justice; Lance Corporal Wayne
Cowcroft and Kingsman Darren Fallon, both charged with inhumane treatment;
Sergeant Kelvin Stacey, charged with assaulting a civilian and causing
actual bodily harm; Colonel Jorge Mendonca, the former commanding officer of
the regiment and holder of the Distinguished Service Order, charged with
negligence for failing to ensure the detainees were properly treated; and
two members of the Intelligence Corps, Major Michael Peebles and Warrant
Officer Mark Lester, charged with negligence.
The details of the interrogation were so graphic that at one point the
prosecution described how Corporal Payne had referred to orchestrating a
“choir of groans” as the detainees were beaten. Corporal Payne pleaded
guilty to the war crime and was sentenced to 12 months in prison and
dismissed from the Army. Before he was sentenced, his lawyers made a case
for a lenient prison term because his fellow defendants, all of whom had
pleaded not guilty, had been acquitted.
The Army
The repercussions of Mr Musa’s death for the Army are unprecedented. A judge
will now be selected to conduct a public inquiry into the events that led to
Mr Musa’s death. Another case for compensation has been started by ten
Iraqis who claim to have been abused in the so-called Camp Breadbasket
affair in which looters were detained in 2003. And lawyers are preparing
claims for nine Iraqis who allege mistreatment after being taken prisoner
near the southern town of Majar al-Kabir in 2004.
The acquittals in the Musa case had already led to one of the strongest
statements by a head of the Army. General Sir Richard Dannatt said that the
mistreatment of the detainees was a disgrace and had damaged the Army’s fine
reputation in Iraq. He promised more investigations.
The response of General Sir Mike Jackson, then Chief of the General Staff, was
to order an investigation into whether the abuse uncovered was systemic.
Brigadier Robert Aitken, director of army personnel strategy, wrote to all
the relevant commanding officers and asked for any evidence of wrongdoing.
In particular he wanted to know whether soldiers had been trained properly
to deal with prisoners.
This was the key to the whole affair: how was it that those involved in
holding and interrogating prisoners seemed unaware that placing hoods over
their heads and depriving them of sleep was against the Geneva Convention
and against British law?
Brigadier Aitken finally produced his report in January and in it he concluded
that there was no evidence of systemic abuse of Iraqi prisoners in the
period between 2003 and 2004. He was, though, highly critical of what
appeared to be a corporate loss of memory in relation to five banned
interrogation techniques: wall standing, hooding, subjection to noise, sleep
deprivation and the withholding of food and drink. The Army has taken steps
to ensure that all troops are fully aware that these techniques are
forbidden, and training in dealing with prisoners has been improved.
Brigadier Aitken also had some hard words to say about soldiers and officers
who appeared to have forgotten the Army’s core values, which include respect
for others, friend or foe.
At the end of the Baha Musa court martial, the judge said that there had been
an attempt to close ranks. For the Army, this was another reminder that
loyalty, while understandable, could never be justified if it meant that
wrongdoing went unpunished.
Brigadier Aitken, however, said in his report: “Every instance of this kind of
abuse is felt keenly by the Army, and deeply regretted, but it would be a
mistake to make radical changes to the Army’s essential organisation unless
there was clear evidence that the faults we were seeking to rectify were
endemic. They were not.”
Despite General Dannatt’s assurances that the Baha Musa court martial was not
the end of the affair, no one else has been arrested or charged.
The United States
Iraqi victims of torture and even the relatives of those killed by US forces
and military contractors have struggled to recover civil damages in US
courts. This is because US law shields ministers, military officers and
civil servants from liability for negligent or wrongful acts committed in
the course of their employment.
Human rights groups are testing the limits of this immunity by suing military
contractors and the companies involved in the interrogations at Abu Ghraib.
“For Iraqi plaintiffs, I am not aware of any cases where there have been
damages paid through litigation,” said Katherine Gallagher, a lawyer
pressing several of the cases.
The torture at Abu Ghraib and other abuses, including the killing of 24 Iraqis
in Haditha, have resulted in at least ten courts-martial, but courts have
thrown out a number of Iraqi claims because of immunity laws. Last year a
federal judge dismissed a test case brought by the American Civil Liberties
Union (ACLU) on behalf of nine Iraqi and Afghan detainees against Donald
Rumsfeld, the former defence secretary, and military commanders. The judge
said that the allegations “stand as an indictment of the humanity with which
the United States treats its detainees”. The ACLU is appealing against the
decision.
The Centre for Constitutional Rights is suing US military contractors involved
in alleged torture at Abu Ghraib. The plaintiffs include a farmer who was
allegedly caged, given electric shocks and threatened with dogs, during four
years of captivity.
A court has ruled that L-3 Services, formerly called Titan Corp, which
provided the interrogators, was entitled to immunity because it was under US
government control, but it held that CACI International, which supplied
interpreters, had no immunity because it was not subject to exclusive US
command. Both decisions are subject to appeal.
A separate suit is being brought against the private security company
Blackwater over the shooting of Iraqi civilians. It is a test of the 1789
Alien Tort Claims Act, which allows foreigners to take action in US courts
for violations of US treaties or international law. The law is sometimes
called the Pirate Law, because it was meant to convince Europe that America
would not shelter pirates.
The man behind the deal
— Martyn Day, the solicitor involved in securing yesterday’s
payment, has made his name with a series of group claims – notably the
tobacco litigation – involving injury to health or the environment: cases
include Sellafield leukaemia and the Japanese prisoner of war claims, for
which he negotiated a settlement of £200 million
— In 1987 he set up Leigh Day & Co, where he heads a team of
20. The firm represented 1,300 Kenyans injured or killed by British Army
munitions and claims in Colombia against BP over damage to farms
— He was heavily involved in the asbestos claims for thousands of
South African and Swazi workers
— He remains active among Labour lawyers and is a director of
Greenpeace Environmental Trust and the author of several books. Despite the
failure of the tobacco litigation he remains dedicated to ensuring equality
of arms for claimants in such cases – and would like aspects of the US class
action imported here
— Mr Day is admired and disliked equally for his boundary-pushing
cases that bring hope to hundreds of claimants, but infuriate those at the
receiving end
What they said
July 2005 This was an isolated, tragic incident - Statement by The
Queen’s Lancashire Regiment
February 2007 Every one of my soldiers and officers worked extremely
hard under indescribably difficult conditions to make Basra a better place - Statement
by Col Jorge Mendonca after five of the seven soldiers charged initially
were acquitted
March 2007 In very difficult and dangerous circumstances in Iraq, our
Forces do a superb job. However, we need to maintain both operational
effectiveness and the public’s trust and confidence - Statement
by the MoD welcoming the acquittal of two more of the seven charged
originally
May 2008 A public inquiry into the death of Baha Musa is the right
thing to do. It will reassure the public that we are leaving no stone
unturned in investigating his tragic death. The Army has nothing to hide and
is keen to learn all the lessons it can - Statement by Des Browne, the
Defence Secretary, bowing to pressure for a public inquiry after only one of
the seven soldiers charged was convicted
July 2008 The British Army apologise for the appalling treatment that
you suffered at the hands of the British Army. The appalling behaviour of
British soldiers made us feel disgusted - Yesterday’s apology from
General Freddie Viggers to Baha Musa’s family and the nine other mistreated
men
