By Jon Silverman
For the relatives of the hotel receptionist Baha Mousa this important ruling by Law Lords means they
can now return to court to press for a full inquiry into the manner of his death in British
custody in September 2003.
Baha Mousa died after being beaten by British troops
They will argue that the court martial of seven soldiers did not meet the requirements of
Article 2 of the European Convention on Human Rights for an adequate investigation into the death.
Human rights lawyers are confident that, armed with the Law Lords ruling, their case
has a strong chance of success.
Of the 30 or so other cases which were stayed to await the law lords ruling, some are also believed to concern deaths in detention, and therefore may benefit from this interpretation of the Human Rights Act.
Beyond UK territory?
But for the families of five other Iraqis whose killings led to the House of Lords case, the
door is now closed on using the act to examine the manner of their deaths in a British
court. Their only option is to go to the European Court in Strasbourg.
At the core of the Lords case was Section 6 (1) of the Human Rights Act. This makes it
unlawful for a public authority "to act in a way which is incompatible with a Convention
The Lords had to determine two key points. Did the European Convention apply to the six deaths? And, if so, does the 1998 Human Rights Act apply beyond the territorial borders of the UK?
Liberty director Shami Chakrabarti (right) has welcomed the decision
Having answered yes to both questions, though with the senior Law Lord, Lord Bingham,
dissenting, they then had to decide whether any of the six dead Iraqis were "within the
jurisdiction of the UK" - as required by the European Convention - when they were killed?
This is where the case of Mr Mousa differs from that of the other five. As Lord Carswell
said, four of the victims were shot by soldiers who believed they were acting under their
rules of engagement.
And in another case, it had not even been determined which group fired the shots which
killed the female victim. Mr Mousa was killed after suffering extreme acts of
brutality in British detention.
For the five appeals which were dismissed by the Law Lords, attention will switch to
Strasbourg. Eric Metcalfe, of the human rights organisation Justice, said a ruling by the
European Court of Human Rights would be eagerly anticipated.
"In a case where someone is shot at a roadblock, for example, I can see the judges being sympathetic to the government view that British troops are not in full control and therefore not responsible under the Convention.
"But in peacekeeping situations, there may be other circumstances where troops are found liable. So, we will be looking to the court to decide what constitutes effective control."
In some Iraqi cases, it is reported that the Ministry of Defence has made ex-gratia payments to victims' families but without admitting legal liability.
The Mousa family want a finding by an independent inquiry that the government was responsible for his death and this ruling brings that possibility a step closer.