Allegations of abuse against British soldiers are not new. On the back of the military operation in Iraq between 2003 and 2008, a number of investigations have been sanctioned to consider alleged cases of torture by serving troops. But last week the British High Court heard from lawyers representing an unprecedented one-hundred-and-ninety-two Iraqi civilians, who accuse the British military of widespread human rights violations during the conflict. Michael Fordham QC, whose Public Interest Lawyers represent the claimants, told the court in straightforward terms that “enough is enough,” and proposed that an independent public inquiry is a vital measure.
The numbers are worrying. In addition to the cases brought before the two judges, Sir John Thomas and Justice Silber, Fordham cited eight hundred more former Iraqi prisoners who have lodged complaints about abuse during the period. These outstanding cases are still to be put before the courts. The growing number of accusations has led to concerns of widespread and systematic mistreatment of Iraqi civilians by the British Forces.

The stance of the Ministry of Defence (MoD) has been to cite “proportionality” and cost as reasons for not yet submitting the issue to a public inquiry. A MoD spokesperson said: “the establishment now of a wide-ranging public inquiry to consider alleged systemic issues would be premature and disproportionate.” The comment has raised eyebrows among critics who have questioned how such a large number of allegations can be dismissed in such terms.

A later MoD spokesperson added that, “while it’s not possible to estimate the cost without knowing the terms of reference, it is clear that a public inquiry would cost scores of millions of pounds. We must be mindful of the interests of the taxpayer when deciding on the right way to proceed.”

The MoD also awaits the report of the already existing Iraq Historic Allegations Team (IHAT), an MoD-established body whose inception dates back to 2010, and whose mandate has been to investigate allegations of abuse of Iraqi civilians by British service personnel – a directive almost identical to that which Fordham is calling for.  But while the ministry feels that IHAT should be allowed to continue with its “important work,” others fear that the existing investigations are fundamentally flawed, raising accusations of bias and questioning IHAT’s objectivity. Indeed, the team includes former policemen and military figures.

As Christopher Stanley, Legal Officer at Rights Watch UK, puts it, “the key issue is independence. You cannot have an investigation within Whitehall, within the MoD, investigating crimes of this nature. It is not going to work. It will not cut the mustard.” Calls for an external investigation continue.

The Iraq Years

British involvement in the Iraqi conflict has always divided opinion. From the very outset, the belief that fuelled the war – that Saddam Hussein had or was planning to develop weapons of mass destruction – was doubted by many. A decade ago almost to the day, public demonstrations against the war on the streets of London became the largest in Britain’s history.

Questions continue to be raised about the merits of the war. In an article published for the Huffington Post this week, Des Freedman of Goldsmiths University London questioned whether or not – with the added benefit of hindsight – the conflict was worthwhile. To Freedman, despite a handful of groups having reaped financial benefit from British involvement, no amount of money could account “for the many hundreds of thousands of Iraqi civilians killed in the conflict.” Nor can the financial rewards of a few account for “the 4400 US soldiers killed in combat and presumably not also for anyone seeking peace, security and democracy in a region whose tensions and rivalries have been intensified by the occupation.” Freedman reports that to this day, cries of “war criminal” continue “to greet former Prime Minister Tony Blair, whose reputation was utterly tarnished following the war.”

A Checkered History

The allegations levelled against the military last week are only a part of a growing list of grievances concerned with British detainment practices. Indeed, the investigations currently being carried out by IHAT include many re-investigations of previous inquests.

Of these, the case of Baha Mousa, an Iraqi hotel receptionist whose autopsy after his death in detention revealed ninety-three identifiable injuries, is perhaps the example most well known to the British public.

IHAT is not the only inquest of its kind. Also pending is the Iraq Inquiry (often referred to as the Chilcot Inquiry), the results of which, four-and-a-half years after it was established, are still to be published. But many groups continue to question the transparency of the investigation. The official government line has been that each investigative measure is a positive step that demonstrates a commitment to bringing to light any wrongdoings. Yet the erstwhile inquiries have not satisfied rights activists, sections of the British press or the courts, who have suggested that efforts so far have failed to show the full extent of misconduct.

Perhaps adding to scepticism is a perceived history of abuse by the British Armed Forces, dating back as far as the 1940s. Just last year, in the midst of these debates over the Iraqi conflict, newly discovered Foreign Office documents released by the National Archives revealed details of various abuses of detained Mau Mau suspects during the Kenyan uprising against the colonial British in the 1950s.

Recent developments have not been viewed as entirely isolated incidents, and are perhaps – as Fordham has vehemently argued – symptomatic of an ingrained mentality of contempt within the British Forces. Like others, the lead lawyer at last week’s hearing has stated clearly that a suitable model of inquiry must be decided upon – one that is fully independent and that seeks both to establish the sources of the culture of abuse and also to “guarantee that abuses are not repeated during future conflicts.”

Financial Cost Versus Human Cost

Despite the already in progress investigations such as IHAT and the Chilcot Inquiry, many argue that last week’s hearing is a watershed moment. Michael Fordham’s “enough is enough” declaration had an air of inevitability about it. And the sheer number of complaints indicated that a long litigation process is to follow.

The MoD last December revealed that a figure in the region of £15m ($23.5m) has already been paid out in compensation to hundreds of Iraqi civilians over claims of mistreatment in detention. Many more such cases may now follow.

One cannot dismiss the department’s financial concerns regarding the threat of an inquiry – it would undoubtedly be a costly undertaking that the British government can ill afford, especially if more compensation payments are on the horizon.

Nevertheless, Andrew Williams, author of A Very British Killing: The Death of Baha Mousa, fails to see how such a cost should stand in the way of justice:

“Over the past three decades the UN has emphasised the need for proper scrutiny of mass violations of human rights. It has pointed to the need in any inquiry of whatever form to ensure the involvement of the victims or their families.

“Only then can a healing process and sense of justice prevail. IHAT are not doing that – a public inquiry in some form could and should. The cost should be secondary.”

The Possible Pitfalls of an Inquiry

There is a danger, of course, that a full-scale inquiry could tarnish the reputation of the military at large. They and their sympathizers – often including those who have experienced the loss of, or serious injury to, a relative in service – have been quick to defend the conduct of British troops.

BBC Radio phone-in on the morning of the High Court hearing heard from the mother of British soldier killed in the early years of the conflict. She spoke emotionally of the injuries her son sustained at the hands of Iraqi civilians, and suggested that soldiers were often faced with a threat which required extreme response. The rules of engagement in Iraq were complex: officially, the conflict was only ever considered an “overseas contingency operation,” making the dynamics of the military presence unusual and therefore lacking in precedents or models to follow.

The question is whether or not the alleged abuses point to a couple of “bad apples” or a “whole barrel of bad apples” in the military ranks. On the one hand, the MoD argues that the British Armed Forces is a huge organization, and even the number of complaints made still implicate only a small minority. The flip-side of the debate reminds us that human rights abuses are fundamentally unacceptable and require no systemic justification for investigation.

While Williams urges that an inquiry should not become a witch-hunt, he is adamant that whatever model is decided upon must assess and then address systemic failings. “The prosecution model of inquiry – where you are only looking to hold those individual soldiers who fired the rifle or carried out the ill-treatment – has its place. But the whole point of a public inquiry is to look at the system.

“And that means looking at what has been created in our name. This is important. Otherwise this country will never learn to take responsibility for the actions of its forces and its government.”

The Importance of Good Practice

Mark Cann, CEO of the British Forces Foundation, believes that the morale in the military is already quite low. According to him, making sure that the right systems are in place now to develop morale is crucial.

Asked his thoughts on last week’s hearings, Cann defended the forces, noting that the position of troops in recent Middle East conflicts has been quite challenging. “These have been the sorts of conflicts where soldiers have, say, been under attack one moment and then had to quickly take off their helmets and help a pregnant civilian,” he commented.

“The British military is not an NGO. They go into places [like Afghanistan and Iraq] that do not have society as we know it, and therefore there is a need for refining the rules of how things work.”

Not many individuals in the debate would seem to find fault with this assertion. The document submitted to the High Court addressed the need to develop “proactive steps” against any systemic abuse, and the hope is that those steps are taken towards educating troops with comprehensive, ethical and well-drilled detainment practices, as well as providing clear designs on the nature of their overall mission.

It seems that there are few who would disagree that some form of action is necessary at many different levels of the system. Whether that action comes in the shape of a public inquiry, further compensation payments to claimants, revised military sanctions or some combination of these options remains to be seen.

In any case, Williams’s apt assessment that “systemic wrongs invariably require systemic remedies” would seem to cut to the very heart of the issue. Meanwhile, all the interested parties await the High Court’s decision on whether or not a public inquiry is necessary, which is due in the coming weeks.