Tactical Questioning: Scenes from the Baha Mousa Inquiry. Richard Norton-Taylor

      An Overview of the Baha Mousa Inquiry

      Thousands of British soldiers took part in the US-invasion of Iraq, ill-prepared and badly-informed. Their commanders were under the illusion, based on poor intelligence, that the overwhelming majority of Iraqis would welcome them with open arms, that much of the Iraqi army would remain in place and help maintain law and order after Saddam Hussein was toppled. If there was going to be any problem at all it would be a humanitarian one with Iraqis desperate to escape the bombing.

      Lack of preparation and inadequate training of British (and US) forces, so clearly exposed at the Chilcot inquiry, paved the way to a violent insurgency. A potentially welcoming and enthusiastic population became a deeply disappointed, disillusioned, and embittered one, that quickly came to see foreign troops as occupiers not liberators.

      Gerard Elias, QC, Counsel to the Baha Mousa Inquiry put it this way: ‘As well as increasing disorder, looting, and the activities of insurgent groups, soldiers were required to cope with very difficult environmental conditions. The temperature in Iraq in September regularly exceeds 50 degrees centigrade. Many soldiers suffered from heat exhaustion. In addition to the conventional military function of providing armed security, British forces found themselves in a civilian policing role and responsible for running much of the city’s infrastructure. Soldiers were sometimes working very, very long hours, often with little respite’.

      Colonel Jorge Mendonca, commander of 1 Battalion Queen’s Lancashire Regiment (1QLR), who with six of his soldiers faced a court martial, told the Inquiry: ‘I cannot begin to describe what it feels like to be in 58 degrees centigrade. When we turned up in Kuwait, I think it was 45 and I felt like I had walked into an oven’.

      All this may help to explain, but not excuse, the abuse of Iraqi civilians. It became clear that British soldiers had little or no idea of the legal, let alone moral, boundaries of behaviour. The case of Baha Mousa and others in Iraq led General Dannatt, the former Head of the Army, to suggest that many members of the Armed Forces lacked moral values when they joined up. ‘I think you’ve got to look at the proportion of people who come into the Armed Forces from chaotic backgrounds’, he said recently. Respect for others, he added, was ‘almost the most important’ of all the values soldiers were taught. Without it, he warned, ‘that’s when you’re into bullying or abusing Iraqi citizens’.

      Yet the soldiers’ commanders and even the Ministry of Defence’s own senior lawyers were uncertain and divided about the law. The chain of command appeared confused. They were unaware of the ban imposed by Prime Minister Edward Heath in 1972, following an official inquiry and ruling by the European Court of Human Rights, on what became known as the ‘five techniques’ – wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink.

      General Sir Michael Walker, Chief of the Defence staff at the time of Baha Mousa’s death, said he didn’t remember being aware of the Heath ruling and had ‘no inkling’ detainees were hooded for long periods.

      Baha Mousa was a 26-year-old hotel receptionist, whose wife had recently died of cancer, aged 22. He was arrested, along with nine other Iraqis, at the Haitham Hotel in Basra on 14 September 2003 by soldiers from 1QLR. Rifles, bayonets and suspected bomb-making equipment were found at the scene. Many Iraqis traditionally had arms to defend themselves against criminals or tribal enemies. Many more did so in the chaotic aftermath of the US-led invasion. A month earlier, an officer serving with the QLR was blown up in a marked ambulance.

      Mousa, the son of an Iraqi police colonel, was held at a temporary detention centre with the other civilians for 36 hours, more than 23 hours hooded. Two days after his arrest, on 15 September 2003, Mousa died. A post-mortem examination found he had suffered asphyxiation and at least 93 injuries to his body, including fractured ribs and a broken nose.

      There is evidence that army officers and MoD officials wanted to cover up the circumstances of Mousa’s death. Certainly they were in no hurry to have it investigated by the Military Police. Lord Goldsmith, Attorney General at the time, expressed his concern in a letter to Geoff Hoon in March 2005. ‘I have been extremely concerned at the conduct of the investigations carried out in a number of the cases which have been referred to the Army Prosecuting Authority arising out of the Iraq conflict’, he told Hoon. He added: ‘I have become most concerned about the quality of investigation into the death of Baha Mousa and the assaults against others detained with him in an incident which occurred on 14/15 September 2003. The matter was not referred to the [prosecuting authority] until 23 June 2004’.

      Martin Hemming, the MoD’s chief legal adviser, admitted the MoD failed to seek the advice of Goldsmith, who held the view that British soldiers were bound by the European Human Rights Act in places such as detention centres, which they controlled. Colonel Nicholas Mercer, the army’s chief legal adviser strongly opposed to hooding, walked out of a meeting with the Red Cross in Iraq because he was told by defence officials not to speak at it.

      Major General Robin Brims, commander of all British forces in southern Iraq, issued an order banning hooding in April 2003, five months before Mousa’s death. He admitted his order was distributed ‘patchily’. Geoff Hoon, Defence Secretary at the time, said he was unaware of that.

      Ministers, including Hoon and his Armed Forces Minister, Adam Ingram, appeared not to want to know what some British troops were up to in Iraq. Mendonca, who left the army in apparent disgust at the way he had been treated, told the Inquiry he was ‘wholly unaware’ of the state of his regiment’s detention facility in Basra.

      A six-month court martial – the most expensive in British history – ended in April 2007 with six soldiers of the QLR, now the Duke of Lancaster’s Regiment, cleared of abusing civilian detainees and in Mendonca’s case, negligence. A seventh soldier, 36-year-old Corporal Donald Payne, admitted inhumane treatment, was jailed for a year and dismissed from the army, becoming the UK’s first convicted war criminal under the International Criminal Court Act. The judge presiding over the court martial accused QLR soldiers of erecting ‘a wall of silence’ around the case.

      That was not the end of a matter which General Sir Mike Jackson described as ‘a stain on the character of the British Army’, and one that would remain until it had been solved. Lawyers for the Iraqis, notably Phil Shiner, applied to the High Court for a proper independent inquiry as required by the Human Rights Act in cases where agents of the state – in this case, British soldiers – were involved in abuses.

      In March 2008, the Ministry of Defence admitted breaching the human rights of the detainees held in Basra. It agreed to pay £2.83m compensation