The Victims Of War: 93 Injuries, One Killing, No Justice

The death in British military custody of Baha Mousa, an Iraqi civilian, led to anger - not at the perpetrators, but at the idea of putting soldiers on trial

Taken from The Independent, UK, 18 March 2007
By Raymond Whitaker

On 4 January 2004, Robert Fisk broke the story in The Independent on Sunday of the death of Baha Mousa, a Basra hotel receptionist, in British military custody. The previous September, he and seven other Iraqi civilians held by the Queen's Lancashire Regiment had been handcuffed, hooded, forced into stress positions, deprived of sleep and subjected to 36 hours of assaults, during which they were kicked, punched and beaten.

When a court martial was convened in Bulford, Wiltshire, on 6 September 2006, a pathologist, Dr Ian Rowland Hill, testified that Mr Mousa had suffered 93 separate external injuries. But last week the court acquitted Major Michael Peebles and Warrant Officer Mark Davies, the final two of seven QLR soldiers accused of offences in connection with the 26-year-old's death.

Cpl Donald Payne had earlier admitted inhumane treatment of the detainees, making him the first British soldier to be convicted of a war crime. He will be sentenced on 30 April. But his earlier acquittal of manslaughter and perverting the course of justice, and the failure of all charges against the other six, means that no one has been held responsible for Mr Mousa's brutal death.

The presiding judge, Mr Justice McKinnon, found that the Iraqi's injuries were sustained "as a result of numerous assaults over 36 hours by unidentified persons", but that there had been a cover-up. "None of those soldiers has been charged with any offence, simply because there is no evidence against them as a result of a more or less obvious closing of ranks."

The outcome of the case was described by Phil Shiner, the lawyer representing the Mousa family, as a "travesty" that "gave the victims nothing". But his indignation was more than matched by numerous voices taking the military's side, such as Col David Black, former commanding officer of the QLR, who said the case should never have been brought against "a number of gallant men who had to make life-and-death decisions in a split second". An editorial in The Guardian retorted that "the only person in a life-or-death situation was Mr Mousa - and he died."

Col Black's comments were part of an unofficial defence of the troops that began immediately after Mr Mousa's death became public. Several newspapers reported, for example, that QLR soldiers had been incensed at the time of Mr Mousa's arrest by the death of a popular officer in an attack in Basra the week before, as though this explained his treatment. In Mr Shiner's view, what happened to the detainees "appears to be ... systematic punishment on behalf of 1 QLR in the mistaken belief that these Iraqis were responsible for the death of one of the battalion".

When Col Jorge Mendonca, commanding officer of the QLR, was charged with negligently performing a duty, there were accusations of "political correctness", which multiplied when it was ruled that he had no case to answer. Much of the comment after last week's acquittals dwelled on the £20m cost of the process.

The tenor of the criticism was shown by the comments of Ben Wallace, Tory MP for Lancaster, home of the QLR. He said: "It is disgraceful that the Government spends millions on a show trial rather than on additional equipment for our troops. It is disgusting that they put more effort into prosecuting our troops than they do into looking after the families of those killed in the line of duty."

The view that the military was being pursued by uncomprehending civilians was reflected in criticism of the Attorney General, although claims that it was his decision to go to trial were denied. For others, the main culprit was the military judicial process, under which a commanding officer can obstruct an investigation, and inquiries are pursued by military police and field investigators who are under-resourced and not independent of the chain of command, resulting in a woefully inadequate case.

It took General Sir Mike Jackson, head of the Army until last year, to get to the heart of the issue. Saying last month that he was "certain" there had been no political interference in the case, he pointed out: "We must remember there is a dead body at the end of this." But at the end of the case, there has been no answer to the question: who killed Baha Mousa?