Hear No Evil See No Evil: The UK and the Iraq Allegations

On Thursday 15 September 2016, Sir George Newman released his report on the death of Ahmed Jabbar Kareem Ali. Amongst the 136 pages of dense analysis was a bitter condemnation of the actions of four members of the Irish Guards in Basra in 2003. A week later, Theresa May called for an end to ‘vexatious claims’ against British troops who served in Iraq. AT Williams examines the latest furore, its deeper history and argues that this is just another stage in the failure of government to find out the truth of what happened in Iraq.

On Friday 23 September 2016, Theresa May met with the Chiefs of the Defence staff. She told them that she was ‘determined to stop “vexatious claims” being brought against the armed forces.’ Her message follows days of press and government outrage at investigations into alleged war crimes committed by British troops in the Iraq occupation and the Afghanistan conflict.

This current frenzy has in fact gripped sections of the press from the start of the year. On New Year’s Day the Independent led with ‘exclusive’ front page stories about the possible prosecution of British soldiers for the unlawful killing and abuse of Iraqi civilians between 2003 and 2009. Over successive weekends, it ‘exposed’ the depth of the scandal, numbering the allegations at over 250 deaths and 1200 incidents of ill-treatment. More than fifty killings, the paper said, had been referred to the Service Prosecution Authority (the Armed Forces’ equivalent to the Crown Prosecution Service) to decide whether to start criminal proceedings against ex-servicemen. Torture lay behind some of the allegations. Rape and sexual assault too. Lt Col Nicholas Mercer, who’d served in Iraq during 2003 as one of the most senior army lawyers, was reported as saying that civilian detainees had been subjected to terrible treatment at the hands of the British. He’d witnessed abuse in the detention camps set up in south east Iraq.

Torture lay behind some of the allegations

The Mail and the Sun reacted with outrage. ‘Our boys’ deserved better than to be hounded by investigators, the papers wrote; their mental health was being impaired by the allegations. And the government was doing little to help. It was even complicit in allowing this ‘witch-hunt’ to continue, they said. The man placed in charge of the investigations by the Ministry of Defence, Mark Warwick of the Iraq Historic Allegations Team (IHAT), was castigated for overseeing a system that subjected British troops to endless questioning.

It wasn’t long, though, before a greater contempt and interest shifted to the law firms acting for the Iraqi civilians making the allegations. ‘Ambulance chasers’, rogues, milking legal aid to humiliate the brave soldiers who’d served their country. These shysters were the bad guys as far as the Mail was concerned.

Michael Fallon, the Secretary of State for Defence, and David Cameron agreed. The then Prime Minister demanded an end to the ‘spurious’ claims, as he referred to them. He wanted restrictions on foreign nationals drawing on legal aid to help bring actions for any wrongdoing by Armed Forces personnel. And he called for professional disciplinary action against the principle law firms acting for the Iraqi claimants too. Penny Mordaunt, Armed Forces Minister at the time, told the Commons on 27 January that a task force of government ministers was to be set up to find ways of ‘protecting our armed forces from litigation motivated by malice and money’.

Pursuing the lawyers

For a time after that, the lawyers became the story. Public Interest Lawyers in Birmingham and Leigh Day & Co. were accused of breaches of professional ethics, of touting for business in Iraq and, by implication, encouraging false claims of abuse. Already, in the previous year, in March 2015, the Telegraph had reported having seen a government dossier substantiating these allegations, though it acknowledged that the Government had ‘no direct evidence that Public Interest Lawyers or their agent are making unsolicited approaches to potential clients’ inside Iraq.

Investigations by the Solicitors Regulatory Authority (the body responsible for policing the profession) were begun in any event and in May 2016 two principal solicitors and an associate from Leigh Day & Co were referred to the Solicitors Disciplinary Tribunal. They deny any wrongdoing and a hearing has been marked down for 30 days (an unprecedented period for the Tribunal) beginning in March next year.

Public Interest Lawyers (PIL) and its principal, Phil Shiner, have also been investigated, much to the approval of both government and some quarters of the press. Richard Littlejohn of the Mail has been campaigning against Shiner for years. ‘Let’s give this shyster a shiner,’ was his request in 2015, labelling PIL as a ‘Left-wing law firm’ making ‘vexatious allegations of “war crimes” against blameless British troops.’ ‘Phil Shiner and the Great Human Rights Swindle’ was his headline in 2013. ‘Shiner is always on the lookout for a jihadist with a grievance which can be used to discredit the Army and win some hard cash,’ Littlejohn wrote.

Lawyers were accused of breaches of professional ethics, of touting for business in Iraq and, by implication, encouraging false claims of abuse

In August 2016 the SRA brought unspecified charges against Shiner, who denies any wrongdoing (all details have been kept confidential so far), to be heard by a disciplinary tribunal next year. After the announcement that PIL had then ceased business following withdrawal of its legal aid contract, Littlejohn wrote: ‘The law firm that has hounded British troops with false allegations of war crimes is going out of business.’ He said: ‘There are reported to be around 1,500 “abuse” cases either instigated or inspired by PIL. All will now be thrown out or withdrawn.’ Littlejohn’s last assertion was misguided. Jeremy Wright, Attorney General, had according to the Telegraph already advised the government that the on-going criminal investigations couldn’t be halted.

PIL’s closure prompted even Theresa May, recently appointed as Prime Minister, to be ‘very much pleased’ so the Guardian recorded. Michael Fallon, Defence Secretary, said: ‘This is the right outcome for our armed forces, who show bravery and dedication in difficult circumstances. For too long, we’ve seen our legal system abused to impugn them falsely. We are now seeing progress and we will be announcing further measures to stamp out this practice.’

And yet the Iraq allegations haven’t gone away.

The Death of Ahmed Ali

The focus on the lawyers and the IHAT investigations was punctured on 15 September 2016. Sir George Newman concluded his public investigation into the death of Ahmed Jabbar Kareem Ali. Sir George is the chair of the Iraq Fatalities Inquiry (IFI), which was set up in 2013 to investigate unresolved questions about some of the deaths of Iraqi civilians at the hands of British forces and is one of the procedures which the Mail and the Telegraph have campaigned to close.

Ali, a 15 year old boy, with three other Iraqi civilians, was arrested on 8 May 2003 by members of the Irish Guards on suspicion of looting. The four Iraqis were put in a Warrior armoured car and driven to the Al-Zubair bridge on the Shatt Al Basra canal. Once there, the Iraqis were ordered out of the car and into the water. It was supposed to be a form of rough and ready punishment, a tactic called ‘wetting’, invented as a desperate attempt to deal with increasing looting in the city. The British forces couldn’t cope with the problem. They didn’t have the manpower or the facilities for detaining looters. Instead they resorted to humiliation.

One of the soldiers testified before the IFI that after the three men and Ali were forced into the river, he saw the ‘boy’ then suddenly go under the surface, come up and then go under again. He didn’t reappear. None of the soldiers went in after him. They got back into the Warrior and left. Ali drowned, his body recovered from the river by his father two days later.

Sir George questioned the soldiers and examined the evidence. He concluded that the actions of the four soldiers amounted to ‘a clumsy, ill directed and bullying piece of conduct, engaged in without consideration of the risk of harm to which it could give rise’. He said ‘there was a manifest failure to take action to save the life of Mr Ali.’

The treatment, clearly in breach of the Geneva Conventions, was known about by senior officers and if not ordered then tacitly accepted

But Sir George also indicated that the whole preparation for dealing with the policing of Basra was seriously questionable. He announced, when delivering his verdict, that it was an issue his inquiry will continue to pursue. He referred to evidence given by Captain Niall Brennan, one of the Operations officers in the Irish Guards at the time Ali was killed. Sir George’s report said that Brennan was ‘aware that one of the methods for dealing with looters was throwing them into one of the waterways.’ It was a routine mode of punishment. And Brennan stated that his commander, Lt Col Riddell-Webster, ‘would have been aware of the practice’ too. The implication is that the treatment, clearly in breach of the Geneva Conventions, was known about by senior officers and if not ordered then tacitly accepted.

How did the government respond to this and the report on Ali’s killing? The Ministry of Defence issued a statement immediately saying that it was ‘extremely sorry’. It said it was committed to investigating all allegations of misconduct. And that was all. Theresa May gave no comment.

The Chilcot Report

So where does this leave the story of all the other Iraq allegations of abuse and killing, the hundreds currently with IHAT to investigate? Who should be believed?

Those who say there has been a desperate failure at the heart of government to get to the bottom of a scandal, who argue that deaths like that of Ahmed Ali and the alleged ill-treatment of hundreds of others must be investigated along with any sanctioned system of abuse? Or those who fume at the alleged misconduct by lawyers representing those making the allegations, the disrespect shown for the British Army and its heroic servants, and who call for the end to all legal processes?

Some had hoped the Chilcot Report might provide a few answers. But the Iraq Inquiry considered its mandate to be restricted and was never minded to assess allegations of the systematic abuse or unlawful killing of Iraqi civilians by UK forces. Chilcot noted in his report, finally delivered after years of consideration, that criminal investigations were on-going at the time of his hearings, that there had been two public inquiries into specific cases of abuse (Baha Mousa and Al Sweady), that lessons about detention and interrogation had already been learned, and that any further investigation by his inquiry might overlap and perhaps prejudice these processes. Questions of systemic abuse were therefore not his concern.

Chilcot didn’t acknowledge any of this

Even so, the report did say how poor the preparations had been for the transition from invading army to occupying force. On the predictable lawlessness that followed the invasion, Chilcot wrote: ‘Faced with widespread looting after the invasion, and without instructions, UK commanders had to make their own judgements about what to do.’ The Inquiry heard from Brigadier Graham Binns that ‘“the best way to stop looting was just to get to a point where there was nothing left to loot”’. The case of Ahmed Ali suggests other more abusive tactics were used too, but Chilcot didn’t acknowledge any of this.

It wasn’t the only evidence about illegal treatment of Iraqis that emerged from Chilcot’s enquiries. Though it didn’t make its way into the final report, the testimony of one witness, Kevin Hurley, once Detective Chief Superintendent of the Metropolitan Police, and a senior member of the Territorial Army as well as a police officer of long standing, was disturbing. He’d served two terms in Iraq between 2003 and 2004. He gave a statement to the Inquiry about his experiences in Camp Bucca, a detention centre outside Basra. He said about 7000 prisoners were held ‘in a dozen barbed wire enclosures… set up in the middle of the desert’ with ‘no running water or sewerage provision. Poisonous snakes and rats were everywhere.’ The camp was run by both British and American personnel.

Hurley said that those in charge ‘had almost no idea why many of the prisoners were in custody.’ There were young children amongst them, 10 or 11 years old. ‘At one stage,’ Hurley said, ‘I had to intervene to have these children properly cared for. On a number of occasions I spoke with UK officers about the insensitive and arrogant way they dealt with prisoners. I had a pointed discussion with a barrister in the UK Army Legal Services who had been particularly rude and bigoted in the treatment of detainees.’

Hurley’s final assessment as ‘a career policeman with many years of senior investigative experience’ was disappointment at ‘how little thought had been given to the issues of prisoner management in terms of provision of basic rights, dignity and influencing their decision whether to talk to us.’

None of this inspired Chilcot to look further.

Political Blindness?

Does the Chilcot Inquiry’s inability or unwillingness to consider the Iraq allegations mirror a longstanding wilful political blindness?

The multiple claims of abuse in detention and unlawful killing haven’t attracted the recent attention of Members of Parliament from any party. No one has campaigned for the truth to be publicly scrutinised. For the past thirteen years the story has only remained alive because legal challenges and judgments (like those resulting from actions brought by PIL and those heard by Sir George Newman), have forced accounts of illegal military action into the headlines.

Even then the response has only been one of ‘outrage’ at a specific crime, such as the killing of Baha Mousa or the drowning of Ahmed Ali. Successive governments have failed to grapple with the nature and scale of allegations, resisting calls for an overarching public inquiry. Nor has the Labour Party challenged the government line since it lost power in 2010. When Jeremy Corbyn spoke after Chilcot released his report, he made no mention of the issue in his list of apologies. Perhaps it was too toxic an issue then. Only when he was re-elected as leader on 24 September and asked about Tony Blair’s statement to the Sunday Telegraph that the current process of investigation should never have been put in place, did Corbyn comment.

‘There has to be a recognition that we’ve signed up to international law on the behaviour of troops,’ Corbyn said, ‘so I think there has to be investigations. Saying never to prosecute, I think, would be a step too far.’

No one is fighting publicly to uncover whether the accumulated evidence indicates failures of policy or represents an unconnected sequence of criminal actions by a tiny minority of rogue soldiers

But no one is fighting publicly to uncover whether the accumulated evidence indicates failures of policy or represents an unconnected sequence of criminal actions by a tiny minority of rogue soldiers. Only when MPs (mostly Conservative members) have sought to condemn the lawyers and call for on-going criminal inquiries against British troops to be wound up, has any particular political interest been evident.

Why is this so? Why, despite the experience of failures to get to the heart of alleged institutional injustices (for Hillsborough, Staffordshire Hospital, child abuse), haven’t politicians reacted except to call for investigations to stop?

Perhaps the best way of understanding is to look at the story’s deeper context.

The First Accounts of Abuse

The beginning was the invasion of Iraq in March 2003. With the rapid collapse of military opposition offered by Saddam Hussein’s forces, it quickly became clear that there would be a need to intern thousands of Iraqis who might pose a threat to the British and US forces. Members of the old regime, enemy troops, people who might have information useful to the Coalition, were rounded up as the country was swiftly overrun.

As invasion turned into occupation, the purpose of internment or detention expanded. First, to uncover weapons of mass destruction and seek out those Iraqi officials who might be held accountable for the Baathist regime’s crimes against its own population. And, second, to obtain intelligence about resistance to the Coalition’s occupation, the so-called ‘insurgency’. Coalition forces were prepared to incarcerate large numbers of individuals and subject many to organised programmes of interrogation. Places like Abu Ghraib and Camp Bucca and various military bases were used to hold and process thousands of people.

Both the American and British forces were criticised

It didn’t take long before deep concerns emerged over the treatment of Iraqis in these installations. Amnesty International reported on conditions and allegations of torture by US personnel at Abu Ghraib prison as early as July 2003. In the spring of 2004, the Wall Street Journal revealed the contents of a confidential report by the International Committee of the Red Cross criticising the methods of detention and interrogation as ‘serious violations of international humanitarian law’. Both the American and British forces were criticised.

Set against the background of international complaints about the operation of Guantanamo Bay and revelations that interrogation techniques amounting to torture were being openly adopted and supported by the US government and its agencies, these reports fuelled outrage in the British and American press.

The death of Baha Mousa (commonly described as a hotel receptionist, but who had only held that job for two weeks before he was killed) in British Army custody in Basra in September 2003 was one of the cases mentioned in the ICRC’s confidential report.

In March 2004, Phil Shiner, principal of the solicitors’ firm Public Interest Lawyers, announced that he was bringing an application before the High Court for a judicial review into the investigation of Baha Mousa’s death on behalf of the family. He argued that the UK had failed in its human rights duties to carry out a sufficiently independent inquiry into this death in custody. Five other cases (involving alleged killings of Iraqis either on the streets of Basra or in their homes) were brought at the same time in what became known as the Al Skeini litigation.

Over the following two or three years, various other stories of abuse or killing emerged and were reported in the press. Most graphic of these occurred at Camp Breadbasket. Iraqi ‘looters’ were photographed being abused in various disturbing (including sexual) ways.

MoD/British court martial handout/PA via The Guardian

MoD/British court martial handout/PA via The Guardian

Photographs taken by soldiers of the abuse at Camp Breadbasket – MoD/British court martial handout/PA via The Guardian

But it was the death of Baha Mousa and ill-treatment of the several other Iraqis held with him in the British base called Battle Group Main in Basra, which provoked most response. Pictures of his battered and blood stained body were released fuelling the indignation.

The Ministry of Defence’s legal response was steadfast: there was no state obligation to apply the Human Rights Act to actions of HM Forces outside UK jurisdiction, it said, and no duty to investigate any breaches of the right to life or the right not to be ill-treated by state agents.

The Army could investigate itself

When the Al Skeini case reached the House of Lords in the middle of 2007, the MoD agreed that Baha Mousa was an exception – his death had occurred on a British base and thus technically within UK jurisdiction. Otherwise, the government maintained that no public inquiry was needed. The Army could investigate itself.

The product of these internal investigations was a succession of failed courts martial. The Baha Mousa case was particularly troubling: despite clear evidence of sustained and collective ill-treatment of Mousa and the nine other detainees, the trial of seven British soldiers in 2006-7 resulted in six acquittals of all charges and only one accused convicted, Corporal Donald Payne, who’d already pleaded guilty to inhumane treatment. He was sentenced to a year in prison and dismissed from the Army. No one else was found responsible for the killing. The soldiers involved ‘closed ranks’, as the Judge Advocate in the case described it.

The killing of Baha Mousa and the acknowledged ill-treatment was widely condemned by senior army officers and ministers alike. General Sir Michael Jackson would later call it a ‘stain on the character’ of the British Army. There was much governmental embarrassment at the failure to secure a successful prosecution even in such a well-documented case.

Despite this, the MoD continued its legal resistance to investigating the case, and any others. It refused to open up to independent scrutiny the mounting claims. Instead it conducted its own internal review.

Two Public Inquiries

Only after the House of Lords’ decision in Al Skeini did the Secretary of State for Defence, Des Browne, announce the establishment of an independent public judicial inquiry into Baha Mousa’s death. Other failed courts martial for other abuses or killings did not result in a similar response. They had all occurred outside a British installation or vehicle and thus outside legal jurisdiction.

As the Baha Mousa Inquiry got underway, another incident involving allegations of unlawful killing and ill-treatment within a British base arose. In the Al Sweady case, also brought initially by Public Interest Lawyers, the claimant was the uncle of a man killed by British troops in a skirmish known as the Battle of Danny Boy in May 2004. Various allegations were made, including that captured Iraqi fighters had been killed when in British custody and that ill-treatment had been practised on detainees then too. These allegations were vehemently denied by the MoD.

At a hearing in 2009 to assess whether the duty to properly and fully investigate the Al Sweady allegations had been fulfilled, the High Court encountered considerable resistance by the government when asked to disclose documentation. The Secretary of State’s failure to hand over relevant papers was described as ‘lamentable’ by the Court. And the evidence of Colonel Dudley Giles, one of the senior RMP officers who was presented as the government’s witness to discuss disclosure, was also described as ‘unsatisfactory’. The Court held that the investigation by the Army into the allegations was ‘not thorough or proficient’ and ordered that a proper investigation should be undertaken. Only then did the Secretary of State, now Bob Ainsworth, decide on another public inquiry.

Sir William Gage was appointed to conduct the Baha Mousa Inquiry in 2008. He finally reported in 2011. Sir Thayne Forbes was appointed to the Al Sweady Inquiry in 2009. It took him slightly longer concluding only in late 2014. Both inquiries provided an opportunity for considering not only the circumstances surrounding the allegations, but also the training and standard procedures used by the Armed Forces when taking people into detention. They ran in parallel for a time but didn’t join forces in anyway. They couldn’t consider any specific case other than the ones before them.

The European Court of Human Rights Involvement

The Baha Mousa Inquiry report was a devastating indictment of those involved in the killing and the interrogation techniques apparently adopted generally by the Army and were contributory factors in Mousa’s death. The use of hooding and ‘conditioning’, techniques to weaken the resistance of detainees prior to interrogation through stress positions, sleep deprivation, limited food and water, was reminiscent of practices used in Northern Ireland in the early 1970s. Those had supposedly been banned by Ted Heath and his Conservative administration. A ‘corporate memory loss’ was the Inquiry’s diagnosis.

Just before the Baha Mousa Inquiry reported, the European Court of Human Rights delivered judgment on the Al Skeini case. It was a watershed in determining jurisdiction for application of the Human Rights Act obligations on the UK for actions by its forces beyond its borders.

The Court held that the European Convention on Human Rights should apply to operations of the British Armed Forces in relation to the exercise of its powers in Iraq

The Court held that the European Convention on Human Rights should apply to operations of the British Armed Forces in relation to the exercise of its powers in Iraq not just abuses taking place in British bases. Once formal authority had been assumed by an Iraqi government in the middle of 2004, those responsibilities fell away. Prior to that moment, as the UK forces were legitimately engaged in conducting security operations, then those rights relevant to the exercise of those powers would apply for the protection of all affected. During its formal occupation, the UK was required to have undertaken full and proper inquiries into any death or allegation of ill-treatment at the hands of its personnel.

The decision opened the way for any allegation about unlawful killing and ill-treatment of civilians to be brought before the British legal system. Until then, though the MoD were aware of hundreds of complaints, it could ignore them for the most part. Compensation has been paid out to many victims, though. Apparently more than £20m has been given to over 300 claimants, suggesting governmental acceptance that crimes had been committed by British troops.

After the European Court’s judgment, independent investigations had to be conducted and prosecutions brought where the evidence merited it if the UK was to fulfil its international legal obligations.

The problem for the government was how to go about this.

The Iraq Historic Allegations Team (IHAT)

With increasing number of Iraqis coming forward, complaining about ill-treatment or the killing of members of their family, the Ministry of Defence had to do something. Yet another case, Ali Zaki Mousa, combined hundreds of separate allegations in one appeal for an over-arching public inquiry to examine them and determine what may have gone wrong systemically. It was claimed that the various cases suggested a pattern of abuse was evident and that this required state examination.

The MoD resisted the call. Instead it set up a convoluted alternative structure that was eventually approved by the High Court. The Iraq Historic Allegations Team, established by the MoD in 2010, was supposed to deal with the investigations of the multiple claims. It consisted of various ex-civilian and military police. The priority was what the Court came to call, rather insensitively, the ‘death cases’.

IHAT has now investigated numerous cases and reported on many. It regularly publishes a statement on its progress. If it finds sufficient evidence of serious crimes, it is supposed to refer the case to the military’s Director of Service Prosecutions. It is for him to decide if there is a realistic prospect of conviction and that it’s in the public interest to prosecute. To date, no prosecutions have been brought.

Investigations by IHAT continue nonetheless but are unlikely to be completed until 2019, as the government has now confirmed. Even that must be an optimistic estimate.

In the case of Baha Mousa, where the circumstances of his death and the perpetrators of assault and ill-treatment are irrefutable following the detailed public inquiry, IHAT has been unable to complete its investigations. In September 2013, on the 10th Anniversary of the killing, IHAT announced it was pursuing ‘new lines of inquiry’. Nothing has been heard since.

Something suspicious may have occurred

It’s not the only case left hanging. In 2014 IHAT announced that in one case of alleged unlawful killing, when an Iraqi prisoner died whilst being transported in an RAF helicopter, it had finished its review and referred the matter to the Royal Air Force Provost Marshal ‘for consideration.’ That’s shorthand for saying something suspicious may have occurred. All that has happened since, according to IHAT, is the Provost Marshal has ‘directed further investigation.’ No one seems to know what that entails.

The deep delays in getting to the bottom of these cases, either to dismiss them or take action against possible culprits, have caused the many allegations to be referred to the Office of the Prosecutor at the International Criminal Court. Although they have the power to intervene they’re unlikely to do so yet. They have sent representatives to see what is being done by IHAT, maintaining some external pressure. But they are keeping a watching brief on what’s happening, no more. A state is left alone to investigate its own alleged crimes unless its efforts do not appear genuine. That point hasn’t been reached.

The Iraq Fatalities Investigations

IHAT was not the only process of inquiry approved by the Court in Ali Zaki Mousa. Some of the ‘death cases’ had already been the subject of criminal action years ago. As these had all failed, usually due to a lack of independent and full investigation, a different sort of examination was needed.

Headed by Sir George Newman, the IFI was to operate much like a coroner’s inquiry, though as the Secretary of State announced at his appointment in 2013, ‘Sir George has been directed not to consider issues of individual or collective culpability, and no prosecutions will result from his examination of these cases.’

So far six killings have been referred to Sir George. He’s reported on four, with several others waiting in the wings. In the first, Nadhem Abdullah’s case, he found excessive force had been used by soldiers which had led to his death. Michael Fallon accepted the report in a parliamentary statement. In March 2015 he announced that in ‘the light of the facts as found by Sir George, and in particular the finding that excessive force was used, I wish to express the Government’s regret at the death of Mr Abdullah’. Appropriate compensation would be paid to the family, he wrote.

In the second case, there was sufficient evidence to suggest to Sir George that death had resulted from an act of self-defence by the soldiers involved.

The first two IFI inquiries took over a year to complete and have cost about £400,000. How many more Sir George will have to examine is unclear, but the Secretary of State suggested there could be eleven in all when he set up the system.

The Al Sweady Inquiry

With all this evidence emerging, how did the shift to attack the lawyers develop? The pivotal moment which saw a change in attitude towards addressing any of the allegations occurred at the end of 2014. It was with the report of the second public inquiry, Al Sweady, that the government’s enduring resistance to establishing an over-arching public inquiry was reinforced. And it was the moment when the current language of ‘vexatious claims’ took root.

The Al Sweady Inquiry report concluded that the specific allegations of executions and mutilation against British soldiers in that case were a ‘product of deliberate lies’. Though some minor abuses were found to have occurred all the serious claims were false.

From this point the conduct of solicitors involved in representing those who’d brought the allegations have dominated both the news and government policy. The Inquiry findings gave a fillip to the MoD’s argument long maintained that there was no need for any wide-scale scrutiny into the Army or the government’s planning for and conduct in Iraq. It justified resisting every case at each stage of the legal process. And it re-directed the story to one of fat-cat lawyers and dubious Iraqi claims. Though the proven cases of unlawful killing and ill-treatment still stood and were still being uncovered, the Al Sweady findings changed the atmosphere. Suddenly, there was a presumption that all allegations were suspect.

The Future?

After Ahmed Ali and now Theresa May’s public intention to protect the Armed Forces from vexatious claims, where might this story go next? And what can we learn from this long history?

It’s likely the government will continue to do everything possible to resist any broad and public scrutiny of these cases. The economic cost involved is often cited as a reason. But it’s by no means the main one: with IHAT and the IFI dealing with cases in some fashion, the costs are high in any event.

The more persistent government line is that the allegations are presumed false and do not deserve to be unpicked collectively. Political pressure to dismiss all individual claims quickly is now a high priority. The government continues to state that no one is above the law, but the dominant message now is that these are spurious claims promoted by unscrupulous lawyers, hired by Iraqis on the make. Theresa May seems to have adopted that line wholesale.

It’s a dangerous story to maintain. We know that the UK entered into the Iraq War without proper planning for its aftermath. The lamentably late-reporting Chilcot Inquiry established that. Is it safe then to presume that the treatment of civilian detainees or the conduct of security operations against a developing insurgency would have been any better prepared for?

We know too that bad things happened. There is a line of substantiated cases. The Baha Mousa Inquiry (which revealed a host of individuals across ranks involved in abuse), the Nadhem Abdullah death, the Camp Breadbasket photographs, Ahmed Ali’s drowning, other proven instances of killing and ill-treatment, and the payment of millions of pounds in compensation by the MoD, all tell us this. Why then intimate that all current claims are false without due examination? Al Sweady taught us that a proper inquiry can establish whether war crimes have been committed or not. If there is no inquiry the allegations will remain unresolved, festering over time.

The debate is currently defined by the mantra that any inquiry into the activities of our armed forces abroad is assumed to be unnecessary, perhaps even an act of treachery

Still, the debate is currently defined by the mantra that any inquiry into the activities of our armed forces abroad is assumed to be unnecessary, perhaps even an act of treachery. There is no political opposition to the government’s stance either, hardly surprising given Labour’s involvement in the Iraq War. That makes individual accountability of any kind in the higher echelons of the military or government unlikely. Getting to the bottom of allegations that unlawful systems were in place, in the methods of interrogation and treatment of detainees, in the rules of engagement for dealing with ‘looters’, or the general policing in Basra during the occupation, is highly unlikely too.

We know already that the investigations have been going on too long to the detriment of everyone: the soldiers who might stand accused and are brought back time and again to answer questions posed by different agencies over many years; the victims and their families who have or may have suffered from abuse; the British public who are persistently prevented from knowing what was done or not done in their name in Iraq. The delay is the direct result of the government’s long-held position, whether Labour, Coalition or Conservative: resist and deny and keep hidden any scrutiny of these matters.

If justice is about truth, about the right to know, there seems little chance of its excavation as regards any aspect of the UK’s intervention in Iraq. Though on occasion the family of someone harmed or killed may learn how and why it happened, the process is shamefully slow. Ahmed Ali’s family had to wait thirteen years. Baha Mousa’s sons continue to see who may be held accountable for their father’s killing.

The unchallenged political momentum remains towards drawing a veil over the whole enterprise. Is that something we want? Or have we learnt so little from Hillsborough and Orgreave and Stephen Lawrence and Mid Staffordshire to appreciate the injustices that can be hidden when institutions close ranks? Perhaps we should ask who is actually being protected if the government bring a halt to the allegations?

Banner photo by Eddie Coyote.

Andrew Williams

Andrew Williams is Lacuna's Editor in Chief. He teaches law and creative writing at the University of Warwick and is the author of 'A Very British Killing: the Death of Baha Mousa' that won the George Orwell Prize for Political Writing in 2013. The book tells the story of a murder in Basra in 2003, for which no one has yet been brought to justice.

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