Wednesday, 23 November 2011

The unfolding aftermath of the Iraq War

* Update ~ Addendum of 26th May 2013 *

The military action by the United Kingdom in Iraq has left an on-going aftermath which is, yet again, highlighted by the Court of Appeal (Civil Division) decision in R (Ali Zaki Mousa) v Secretary of State for Defence [2011] EWCA Civ 1334 - on appeal from the Divisional Court [2010] EWHC 3304 (Admin).    Essentially, the Court of Appeal (Maurice Kay, Sullivan and Pitchford LJJ) held that an investigatory process set up by the Secretary of State for Defence did not meet the requirements of Article 3 of the European Convention on Human Rights as interpreted and applied by the European Court of Human Rights.  The process was set up to investigate allegations by a large number of Iraqis that they were subjected to ill-treatment at the hands of members of the British Armed Forces in the period 2003-8.  By putting in place the investigatory process, the Secretary of State considered that an immediate public inquiry was not required though he did not rule one out permanently.  He wished to see how the investigations proceeded.  The claimant (Mousa) applied for judicial review of the Secretary of State's refusal to order an immediate public inquiry.  In the court's words:

"The claimant sought 'a comprehensive and single public inquiry that will cover the UK's detention policy in South East Iraq, examining in particular the systemic use of coercive interrogation techniques which resulted in the … ill-treatment and which makes it possible to learn lessons for the future action of the British military."

Article 3:

"Prohibition of torture - No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

This is perhaps the
most absolute of all the articles in the European Convention.  If the treatment of the individual is within Article 3 then it is contrary to the Convention.  The article is an unqualified prohibition of such treatment.  In R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26 it was held that the reach of the Human Rights Act extended to a prison in Iraq which was under the control of the British military.

The law on independent investigations:

The Court of Appeal stated (paras. 12 and 13):

" .... it is appropriate to set out some of the legal principles, although they are not significantly in dispute. Although this is essentially an Article 3 rather than an Article 2 case, the Divisional Court considered and it is common ground that the same basic principle applies. In Jordan v United Kingdom (2003) 37 EHRR 2, it was stated by the European Court of Human Rights (ECtHR) in these terms (at paragraph 106):
    " … it may generally be regarded as necessary for the persons responsible for and carrying out the investigations to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence.
    The purposes of the investigation were described by Lord Bingham in R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 (at paragraph 31):
    " … to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their loved ones may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others."
    In an Article 3 case, that satisfaction would accrue to a proven victim in person
The independence of the investigatory process:

The court went on to consider the detailed structure of the investigatory process which the Secretary of State had set up.   Central to this was the independence of the part of the process known as IHAT - Iraq Historic Allegations Team.   Basing their decision on somewhat different evidence to that which had been before the Divisional Court, the Court of Appeal held that IHAT was not sufficiently independent.  At para. 36 the court stated:

" .... it is impossible to avoid the conclusion that IHAT lacks the requisite independence. The problem is that the Provost Branch members of IHAT are participants in investigating allegations which, if true, occurred at a time when Provost Branch members were plainly involved in matters surrounding the detention and internment of suspected persons in Iraq. They had important responsibilities as advisers, trainers, processors and "surety for detention operations". If the allegations or significant parts of them are true, obvious questions would arise about their discharge of those responsibilities."

and, at para. 37:

"The fact remains that, under the IHAT arrangements, Provost Branch members are investigating allegations which necessarily include the possibility of culpable acts or omissions on the part of Provost Branch members."

IHAT was to report to a further part of the machinery known as IHAP - Iraq Historic Allegations Panel.   IHAP's role included considering the results of IHAT  investigations.  The court stated - para. 39:

"If, as we have found, IHAT suffers from a lack of practical independence and the raw material destined for consideration by IHAP is the product of IHAT, IHAP's independence is itself compromised. Moreover, it comprises representatives of the three bodies – the Ministry of Defence, the Army chain of command and the Provost Branch – which would be vulnerable to criticism if the case on systemic abuse is established."

Furthermore, once the independence of IHAT was rejected, the Secretary of State's policy to "wait and see" the outcome of IHAT investigations could not survive. At para. 42:

"The policy rested on the hypothesis that it would be untimely to establish a public inquiry before IHAT had completed its task, at which point the need could be assessed on the basis of fuller information. Waiting for the outcome of an independent preliminary investigation is one thing. However, once that investigation is adjudged to lack the necessary independence, it cannot be permissible to rely on it as the main reason for postponing a decision. That by itself leads us to the conclusion that "wait and see" is not a tenable position"

Thus, once the the independence of IHAT was rejected, the house of cards built on that assumption collapsed.  It is now for the Secretary of State to reconsider how the Article 3 obligation should be satisfied.


The court did not specify that the solution was to order a public inquiry.   At the outset of their judgment, the Court of Appeal noted: 

"It sometimes seems that part of the choreography of public accountability in this country is the clamour for a public inquiry into suspected wrongdoing by agents of the state. Usually the ministerial decision to order or to refuse such an inquiry is a matter of discretion. However, where the suspected wrongdoing involves breaches of Articles 2 and/or 3 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), the investigatory obligation of those provisions is engaged. It may be satisfied in various ways, depending on the circumstances of the case. The central issue on this appeal is whether it was permissible for the Secretary of State to adopt a specific procedure which fell short of a public inquiry."

Interestingly, in some other Iraq-related areas, public inquiries have been established.  An inquiry into the death of Baha Mousa reported in September 2011.  An inquiry into Al Sweady is on-going and is at a relatively early stage.   This inquiry is concerned with allegations against British soldiers of unlawful killing in May 2004 and ill-treatment of five Iraqis during the summer of 2004.

Other matters:

The Chilcot Iraq Inquiry has completed its hearings but is yet to report and a draft report is expected in the summer of 2012.   Chilcot is an inquiry by a committee of  Privy Counsellors and was set up to consider the period from the summer of 2001 to the end of July 2009, embracing the run-up to the conflict in Iraq, the military action and its aftermath.   It has focused more on the decision-making processes to see what lessons can be learned.  The Inquiry website states - "Those lessons will help ensure that, if we face similar situations in future, the government of the day is best equipped to respond to those situations in the most effective manner in the best interests of the country."

Litigation brought by individuals who claimed that British agents were implicated in torture was settled in November 2010 - see "The Al Rawi case settlement - security and the justice system.".   At the time, Kenneth Clarke announced that the government would bring forward a Green paper on security and justice.  This has now been issued- Cabinet Office - Justice and Security.   Comments on this paper can be submitted up to 6th January 2012.  This paper raises some major concerns and it will be examined by the Joint Committee on Human Rights

Yet another area is the inquiry, set up in July 2010, under the Chairmanship of Sir Peter Gibson - see Detainee Inquiry.  This is to examine whether Britain was implicated in the improper treatment of detainees held by other countries in the aftermath of 9/11.  This Inquiry has not been entirely well received with some solicitors and bodies refusing to co-operate with it - see Inquiry statement of 4th August 2011 - and also see the Letter from certain Non-Governmental Organisations to the Inquiry.

It remains to be seen just what the result of all of these inquiries will be.  Maybe, somehow, all of these strands should eventually be drawn together so that the fullest possible picture of the UK's stance in relation to Iraq is ultimately revealed.

Other links:

UK Human Rights Blog - Rosalind English - "Investigation team 'lacks necessary independence' for MOD ill-treatment allegations."

The Guardian - 16th November - Joshua Rozenberg - "The Justice and Security Green Paper is an attack on liberty."

Addendum 24th November:

"MoD's resistance to human rights in Iraq blamed for the death of Baha Mousa" - The Guardian 24th November - legal opinion that the Human Rights Act 1998 extended to prisoners in British detention was ignored by the Army.

Addendum 26th May 2013:

The Chilcot Inquiry report remains unpublished - see Snowblog - Chilcot Inquiry report

The Justice and Security Act 2013 introduces closed material procedure into civil proceedings and amends the arrangements for oversight of the security services.

The Gibson Inquiry was discontinued - Watching the Law

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