UK must investigate Iraqi civilian's death
Staff and agencies
Tuesday December 14, 2004
The family of an Iraqi civilian allegedly beaten to death by British troops today won a high court challenge against the government's refusal to order an independent inquiry into his death.
The death of Baha Mousa, a hotel receptionist, was one of six test cases in which the families of Iraqi civilians allegedly killed by British troops in Iraq sought independent inquiries into the deaths.
Relatives argued that, under human rights laws, they were entitled to unprecedented investigations into whether troops were guilty of unlawful killing. The other five families had their applications for judicial reviews rejected.
The landmark ruling could have widespread implications for the actions of British forces overseas. Rabinder Singh QC, appearing for the families in the six test cases, argued that the European Convention on Human Rights applied to Iraqis in the part of south-east Iraq controlled by the British.
High court judges only partially upheld that argument. Two judges ruled in favour of Mr Mousa's family, who say the 26-year-old was unlawfully killed by British soldiers while in custody.
Lord Justice Rix and Mr Justice Forbes said Mr Mousa's case came within the convention because his death had occurred in the custody of UK forces in Iraq. However, they said the other five deaths had arisen out of shootings of Iraqis by British forces "in the field", and therefore failed on the grounds that the shootings had occurred outside the jurisdiction of the UK.
"There may be other remedies, but we are not here concerned with that," the judges said in relation to the five failed cases.
In court, Mr Singh argued that the government was legally obliged to investigate whether soldiers had breached articles two and three of the convention, which guarantee the right to life and freedom from torture or inhuman and degrading treatment.
Lawyers for the defence secretary, Geoff Hoon, had argued that the convention applied only in Europe and did not apply to British troops in Iraq. Mr Hoon also claimed that the Human Rights Act - which incorporated the European convention into UK law - could only be applied in UK territory.
In a summary of their judgment, Lord Justice Rix and Mr Justice Forbes said their ruling was only concerned with whether the deaths had taken place within the jurisdiction of the UK - so as to fall within the scope of the convention - and, if so, whether there had been a breach of articles two and three regarding an adequate inquiry into those deaths.
They ruled that a state's jurisdiction was "essentially territorial" but, in certain exceptions, extended "to outposts of the state's authority abroad", such as embassies and consulates. The judges said this exception could apply "to a prison operated by a state party in the territory of another state with the consent of that state".
However, they said it did not apply "to the total territory of another state which is not itself a party to the convention" even if its territory was "in the effective control of the first state". In Mr Mousa's case, the judges ruled that "the inquiries that have taken place into his death are not adequate in terms of the procedural requirements of articles two and three of the convention".
The Ministry of Defence said it was considering whether to appeal. However, it welcomed the court's decision that, in five of the six cases, the European convention did not apply because the claimants did not fall within the jurisdiction of the UK.
"In court, we argued that the European Convention on Human Rights was never intended to cover the circumstances we face in Iraq, where the security situation does not permit all deaths to be investigated in the same way as would happen in peacetime Europe," an MoD statement said.
"We welcome, therefore, the court's acceptance of the general principle that any application of the ECHR outside the United Kingdom is exceptional and limited and occurs only in specific cases recognised in international law."
It said the decision was important for current and future operations in which troops were engaged in armed fighting because "it is not possible for us to adopt procedures such as the immediate establishment of a police cordon to enable the painstaking collection of forensic evidence".
Both sides were granted permission to appeal. Around 30 other similar cases were awaiting today's court ruling.
Speaking after the ruling, Phil Shiner, a solicitor acting for the families, said: "Today is a historic day for human rights and the rule of law in the UK. The high court has ruled that, in the cases of civilians killed or tortured in detention in Iraq, the European Convention on Human Rights applies to British forces.
"The high court has left open another big question, namely whether the UK had effective control of south-east Iraq. If so, all civilian deaths at the hands of British forces post-occupation would have to be investigated by independent inquiries.
"This will now go to the court of appeal. Ultimately, I believe that we will succeed on that point also."
Carla Ferstman, the legal director of the human rights organisation Redress, said: "It is not enough for the military to investigate behind closed doors. There must be an effective public investigation by an independent official body.
"Only such an investigation could reveal what really happened and who might be responsible. Family members must be kept fully informed of the process."