The ScotsmanFog of war envelops Blair
IT WAS the shocking manner in which Ahmad Jabbar Kareem died that brought the Iraqi teenager to the world’s attention last year. Allegedly forced into a filthy Basra canal by British troops clamping down on looting in the area, he was then ordered to swim to the other side or face a bullet.
Ahmad couldn’t swim, but took his chances in the water anyway - and drowned as he tried to make the crossing.
His case is one of a growing number of suspicious deaths in British custody that the Ministry of Defence has admitted it is currently investigating.
The British military is coming under intense scrutiny over allegations of torture and mistreatment of civilian prisoners in Basra, with Amnesty International demanding an independent inquiry. Yesterday, it emerged the MoD now faces direct legal action over the deaths of 13 Iraqi citizens.
The conduct of American soldiers in Iraq is also under scrutiny. Yesterday, one Iraqi civilian died and another was critically injured after US troops opened fired on a car that failed to stop at a military roadblock near Rumaythah, 135 miles south of Baghdad.
In a separate incident, Polish soldiers opened fire on a bus full of Shiite Muslim pilgrims from Iran after it failed to stop at a checkpoint near Kerbala, witnesses said. Ten people were hurt, including eight Iranian pilgrims, a Polish soldier and member of the Iraqi security forces - but Polish officials denied the bus was carrying anyone but the driver and said they suspect the incident was an aborted terrorist attack.
Lawyers representing the Iraqis killed by British troops over a six-month period from May 2003, are believed to be demanding millions of pounds in compensation as well as calling for an MoD inquiry and are expected to take their cases to the High Court in London over the coming months.
According to the MoD, military files on eight of the 13 cases have been closed, but one has been handed to the Army Legal Services for further investigation. As well as Ahmad Jabbar Kareem’s drowning, the cases also include that of an Iraqi man allegedly killed when British soldiers burst into his house before dawn. There is also the case of a farmer shot while fixing a water-pump.
The MoD is believed to have already paid compensation totalling £15,000 to families in the Basra area since last May and has officially refused to accept liability for any of the deaths. However, in some cases compensation letters have been accompanied by handwritten, apologetic letters from the British military. In one, a senior officer expresses regret and offers a donation to the family in question, while in another, a commander says his men were deliberately misled by an anonymous civilian.
UK-based lawyers acting for the relatives of the victims said they were demanding improved compensation and an inquiry into the circumstances surrounding the deaths of the Iraqis.
Phil Shiner, who is pursuing the claims on behalf of Public Interest Lawyers, said the Iraqi families must not be treated like second-class citizens or insulted by the MoD. He added: "There must be full damages paid to all these families. The MoD must establish a fair and rational compensation scheme so all those who have been affected by unlawful killings, injuries or loss of property, can be compensated without the stress of litigation.
"It is a shock to discover that British troops have caused the deaths of so many innocent Iraqis since our occupation began on 2 May 2003."
Mr Shiner said he had written to Geoff Hoon, the Defence Secretary, demanding that he immediately set up an inquiry into the deaths, that the MoD accepts liability for what the lawyers say are illegal killings, and that the MoD pays full compensation to the families in question. An MoD spokesman said it had received the letter, and would respond "in due course".
Another of the barristers acting for the Iraqi plaintiffs is the well-known human rights lawyer Rabinder Singh, co-founder of Matrix Chambers with whom Tony Blair’s wife works.
It emerged last month that in a separate action, lawyers acting for an Iraqi civilian whose brother was killed by British troops are also claiming compensation in a test case with serious implications for UK occupying forces. They are tabling the claim at the High Court on behalf of Mazin Jumah Gatteh, whose brother and another Iraqi were shot dead last year during a funeral ceremony in Basra. Shortly after the killings, a senior British officer wrote to the Beni Skein tribe, to which the victims belonged, expressing regret at the deaths and offering a "small donation" to the families, but declining to offer compensation.
In his witness statement, Mr Gatteh said his brother was walking towards his home to attend a funeral ceremony in August in Basra’s Majidiya district when he was fired upon by British soldiers. His statement reads: "Automatic machine guns were used on my brother and there were bullets flying, with shrapnel all over the place. My brother was unarmed and I have no idea why he was shot at. I believe that he was hit by a number of bullets."
Lt-Col Ciaran Griffin, commander of the 1st Battalion, the King’s Regiment, whose troops had been involved, gave a detailed version of events to the Beni Skein tribe. He said a patrol saw shooting and believing it was a "dangerous gun battle", went on foot to investigate.
He added: "The night was very dark as there was no electricity for street lighting. The patrol encountered two men, who appeared to be armed and a direct threat to their lives, so they opened fire and killed them. In retrospect, it became clear the heavy shooting was in sympathy for the funeral of a dead man and the two men shot by the British patrol had not intended to attack anyone."
Lt-Col Griffin regretted the deaths but said weapons were forbidden on the streets "to avoid misunderstandings with the army and police" and added: "If these rules had been obeyed this tragic event would not have happened."
There is no official count of the number of Iraqi civilians killed during and after the conflict but academics and peace activists estimate that up to 10,000 have died.
Tortuous legal argument making case for conflict becomes a political monster turning on its master
THE legal quagmire into which Tony Blair is now sinking can be traced back to the Prime Minister’s biggest mistake in the run-up to the war: trying to translate Washington’s case for it into the language of the United Nations.
This time last year, the United States had been brutally honest: it wanted Saddam Hussein out of power and it did not care what the UN thought. The only way to depose Saddam, it argued, was to break free from the UN structure and do so without permission.
The post-Iraq trauma which Mr Blair has suffered for months - the saga of Lord Goldsmith and allegations that he changed his advice on the legality of the war is just the latest chapter - stems from his attempt to bring the US and the UN together with his own case for conflict. This was tailored specifically for the UN, using its language and its concerns.
Britain’s legal argument for war with Iraq was designed to weave existing UN Security Council resolutions. To succeed, it had to make the case that deposing Saddam would simply be enforcing the will of the UN. This meant the WMD argument. This, not torture chambers, had brought Saddam into conflict with the UN over the years. Any wider objective tasted too much like American aims: it would be rejected.
The problems from Mr Blair’s now-infamous WMD dossier have dominated British politics for the last nine months. Mr Blair is now wrestling with the second monster he created: the written justification for war.
It was based on a central premise: that Saddam had weapons of mass destruction and needed to be "disarmed" by force. Without the weapons, it is hard to argue that Mr Blair’s legal case meets the standards he himself set.
The very idea of crafting a delicate, legal case for war designed to satisfy UN lawyers was scoffed at by the Americans. President George Bush summed up his administration’s legal position in one sentence: "The United States has the sovereign authority to use force in assuring its own national security." That is to say, "We’re going in to Iraq, and we don’t care what the rest of you think". Had Mr Blair used the same blunt logic he would not be in the trouble he is now.
Lord Goldsmith is a commercial lawyer. When he was made attorney-general in 2001 by Mr Blair, a personal friend, it was the culmination of a career helping companies sue each other. International law was not his forte. His first instinct would have been to ask the Foreign Office - where the legal team was far from united. Elizabeth Wilmhurst, its deputy chief legal adviser, was soon to resign because she saw no legal grounds for war.
Helena Kennedy QC, a Scottish lawyer and Labour peer, took up the story on breakfast television yesterday. "The preponderance of our legal advice was that war would be unlawful if it was not in self-defence, if there was not an imminent threat directly to us, or if there wasn’t a consensus from the international community."
So, according to Baroness Kennedy, Lord Goldsmith looked around until he found a lawyer who agreed with the Prime Minister: Professor Christopher Greenwood of the London School of Economics.
This happened, she says, "certainly quite late in the day" and because Prof Greenwood "was known as one of the very few people who felt that an argument saying that war without a second [UN] resolution would be lawful". The end result is not rocket science. Britain’s case for a war, which is legal within the UN framework, was built from three existing resolutions - and interpreting them in a very specific way.
After Saddam’s invasion of Kuwait in 1990, the UN authorised the use of "all necessary means" - code for war - to drive out the Iraqis and restore Kuwait’s "independence and territorial integrity".
In April 1991, the UN adopted Resolution 687 which required Iraq to allow inspectors to dismantle its weapons. Finally, in the run-up to war, the UN laid down Resolution 1441 demanding "full and immediate compliance" with the "disarmament obligations" set in 1991. Or else, it threatened "serious consequences".
And this, pretty much, was what Lord Goldsmith went on. He argued that the 1990 resolution justified force. Resolution 687, he said, added the demand to disarm weapons - put the two together and it justifies force to disarm Saddam. Also, there were the "serious consequences" threatened in Resolution 1441 - which could arguably be seen as a threat of war.
In London, lawyers spotted some pretty obvious flaws in this. The first resolution was about liberating Kuwait, not invading Iraq - there was no invasion justification to revive.
And Resolution 687 was about dismantling banned weapons: even in March last year, there was no proof that Saddam had such weapons. It looked very suspicious, but there was no proof. Even if there was, nothing in Resolution 687 threatened war. And the "severe consequences" in Resolution 1441 were never meant to mean war. If it did, the UN would use its favourite euphemism "all necessary means".
Mr Bush made little pretense at playing by the UN rule book. But Mr Blair did - and gave a hostage to fortune.
This hostage is the sheets of legal advice which Lord Goldsmith handed in to Mr Blair on 17 March last year. Its condensed version, which was made public, said that the "combined effect" of the UN resolutions meant "military action against Iraq was legal without a second resolution".
Then, at least, Lord Goldsmith was taking it for granted that Saddam had banned weapons. Without such evidence, there is a strong chance that the British case for war would not stand up in court. This is exactly where it would have been heading if Lord Goldsmith had not decided to drop the government’s case against Katharine Gun, the intelligence aide who admitted breaking the Official Secrets Act by leaking a memo to a newspaper.
The collapse of the case was staggering because Ms Gun already admitted the crime - her defence was that she acted to save lives from being lost in an illegal war. And it was this defence which seems to have scared the living daylights out of Lord Goldsmith.
Mr Blair will not release the full written advice of the case for war on the ground that governments have never make such documents public.
This is untrue: it happened in 1971, when the government published its legal advice on the arms embargo to South Africa. It happened in 1968 over a controversial clause in a customs bill.
Governments, from time to time, make this public. But they normally do so when they are certain that their advice is rock solid. The Iraq war was never going to be legal in the eyes of the UN without a specific resolution. Mr Blair is now paying the price for pretending otherwise.