Global Policy Forum

By Richard Norton-Taylor

Lawyers representing the families of Iraqis detained by British soldiers yesterday accused the Ministry of Defence of suppressing crucial information about the circumstances surrounding their mistreatment, including advice given to senior army officers. They have asked the high court to issue a new order requiring the MoD to disclose all relevant documents about the death of Baha Mousa, a Basra hotel receptionist who suffered 93 injuries and died while in British custody in 2003, and the abuse of 10 other Iraqi civilians.

Evidence about their abuse emerged during the court martial of Colonel Jorge Mendonca of the Queen's Lancashire Regiment and five soldiers. They were acquitted of negligence and abuse. Early in the case Corporal Donald Payne admitted treating the Iraqis inhumanely. Public Interest Lawyers, who are acting for the Iraqis, have been asked by the MoD to take part in an internal review into the incidents, including the "background of the training given to British armed forces regarding the treatment of detainees, the orders given in that regard in the relevant period in Iraq, how these orders were (or in some cases were not) cascaded down to units and soldiers...". However, the lawyers say they need access to information the MoD is refusing to disclose, notably about incorrect legal advice given to British soldiers in Iraq.

Evidence that British soldiers used "conditioning" techniques to "soften up" Iraqi detainees was at the centre of the court martial. It revealed that army officers had ignored a 1972 ban on hooding, stressing, sleep deprivation, food deprivation and noise. Brigadier Euan Duncan, director of the army's Intelligence Corps, told the court martial that US commanders had criticised British forces in 2003 for failing to extract sufficient intelligence from detainees. The implication, he said, was that "firmer" techniques should be used. In other evidence, Major Anthony Royce, the Queen's Lancashire Regiment's officer in charge of internment, who was called as a witness by the judge, said he had been instructed to use "conditioning techniques" on prisoners, including hooding. He said that Col Mendonca had seen Iraqi prisoners being "conditioned" at the regiment's detention centre. "He asked why it was taking place," Maj Royce said. He added: "I explained that I had cleared it with the chain of command. He was happy that the chain of command and legal advisers had given us that clearance." He said he checked with the brigade legal adviser, and was told that "conditioning" and hooding were acceptable. Phil Shiner, of Public Interest Lawyers, said yesterday: "It is a matter of public record that civil servants at the highest levels knew of and approved the use of hooding, stressing and sleep deprivation. It is striking that these civil servants, who have so much to hide, are the very same personnel now advising the defence secretary to continue to suppress this material." Evidence he wants includes advice given by Lieutenant Colonel Nicholas Mercer, the army's senior legal adviser in Iraq who objected to the hooding techniques, and relevant extracts from the army's doctrine and training manuals. Mr Shiner, who also wants compensation for the Iraqis, said he believed that the case for an independent public inquiry, rather than an internal MoD one, was overwhelming.

The law lords ruled in June that British soldiers who imprisoned detainees during military campaigns abroad are bound by the Human Rights Act, which prohibits torture and inhuman or degrading treatment. The European convention on human rights, which the act enforces in British courts, obliges governments to carry out independent, timely and open investigations when someone dies allegedly at the hands of agents of the state. Mr Justice Collins issued a high court order last month saying the MoD must release all "relevant material" to the defence lawyers. The MoD says it will provide defence lawyers with all the material it can without compromising national security and releasing "protected data". It argues that some of the information cannot be disclosed because of data protection laws and exemptions under the Freedom of Information Act.