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Last Updated: Tuesday, 14 December, 2004, 18:13 GMT
Army to feel impact of Mousa judgement

By Jon Silverman
Legal affairs analyst

The case of Baha Mousa has important implications for British military procedure in Iraq and elsewhere and it would be highly surprising if the highest court, the House of Lords, was not asked to give a definitive ruling.

Families' solicitor Phil Shiner and his researcher Mazin Younis outside the Royal Courts of Justice
Mousa family solicitor Phil Shiner said it was an "historic" judgment
Assuming that the Appeal Court's judgment on Baha Mousa is upheld, the government would be obliged to set up an independent inquiry into his death.

This has happened in the past following rulings by the European Court of Human Rights in relation to Northern Ireland.

The Bloody Sunday inquiry is one possible model - though a full statutory hearing is lengthy and prohibitively expensive and would be resisted by all the parties.

By exposing military behaviour towards detainees, any inquiry could be highly embarrassing for the Army as well as ensuring substantially higher compensation payments than is routinely offered to the families of those who have died in military custody.

The longer-term consequence could be that the armed forces lose the right to block criminal charges against troops

It may also lead to a change of culture in the Army and a recognition that the procedures of the Special Investigations Branch (SIB ) do not conform to human rights standards.

The longer-term consequence could be that the armed forces lose the right to block criminal charges against troops.

This is an issue which concerns the Attorney-General and which has been put on hold while the courts consider the cases of Mr Mousa and others.

Limited victory

But though the Appeal Court's decision on Mr Mousa undoubtedly extends the jurisdiction of the Human Rights Act, it is a limited victory.

The court had been invited to rule that all of the territory of south-east Iraq under the de facto control of British troops fell within the scope of the European Human Rights Convention.

Had it done so, this would have profoundly affected the thinking of commanders and government ministers wherever the military perform peacekeeping or other duties anywhere in the world.

The MoD said last summer that it was investigating 93 allegations of abuse by British soldiers in Iraq
The judges did not take this step. This means that British forces whose actions kill or injure civilians will continue to be answerable to military law and, in very rare cases, to the ordinary criminal courts which have jurisdiction over certain offences committed abroad, including murder and torture.

Some, including the lawyer for the Iraqi civilians involved in Mr Mousa's case, Phil Shiner, argue that British forces operate in a " legal black hole" in Iraq.

Pointing out what theoretical sanctions exist, the armed forces minister, Adam Ingram, says this is nonsense.

The Appeal Court heard evidence of about six test cases. But Phil Shiner says his firm, Public Interest Lawyers, is handling at least 27 allegations of unlawful killing of Iraqi civilians, eight of torture and two of serious injury.

For its part, the MoD said last summer that it was investigating 93 allegations of abuse by British soldiers in Iraq.

The Mousa judgment has not only widened the scope of the Human Rights Act. It has considerably strengthened the case for compensation, and possible prosecution, of soldiers found to have acted unlawfully.


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