The Shadow of Impunity: Justice for the killing of Baha Mousa and lessons for Afghanistan

Elizabeth Brown

Twenty years ago, on 15 September 2003, a 26-year-old Iraqi man named Baha Mousa died following catastrophic mistreatment carried out by British soldiers in a detention facility in Basra. The incident spawned a complex web of accountability efforts, including a Royal Military Police investigation, a Court Martial, a judicial review case which ultimately concluded at the European Court of Human Rights in Strasbourg, a full Public Inquiry, and a civil litigation seeking compensation. 

Britain’s experience of engaging with allegations of war crimes in Iraq was not isolated to this case. In the years after the Mousa family’s judicial review, thousands of additional alleged victims emerged. Yet more accountability efforts followed, including a second Public Inquiry, further judicial review and civil proceedings, and the establishment the Iraq Historic Allegations Team (IHAT), to investigate the claims. Now, twenty years later, a new Public Inquiry is preparing to hear evidence, this time into allegations of war crimes by British forces in Afghanistan. So, what, if anything, has the United Kingdom learnt in the two decades since the tragic death of Baha Mousa? 

The death of Baha Mousa

After being arrested on 14 September 2003 during a raid on the hotel where he worked, Baha Mousa and his colleagues were taken by members of the First Battalion, Queens Lancaster Regiment (1QLR) to their headquarters. There, according to the subsequent Public Inquiry, the men were subjected to continued and deliberate brutality. They were forced to hold painful stress positions for hours at a time, whilst their hands were bound, and thick hessian sacks were hung over their heads in the oppressive Iraqi heat. They were prevented from sleeping and given limited food and water. One was forced to sit next to a noisy and hot generator simulating white noise. 

The use of these techniques had been outlawed by then-Prime Minister Edward Heath in 1972 (the ‘Heath ban’) after their controversial use in Northern Ireland. However, the ban was effectively forgotten by the time British forces were deployed in Iraq. The poor conditions were enforced through a regime of brutal violence, casually inflicted. Detainees deemed uncooperative were beaten, shouted at, and sexually humiliated. The Inquiry found “that most, if not all, of the Detainees were the victims of serious abuse and mistreatment by soldiers during their detention.”

After withstanding 36 hours of this treatment, Baha Mousa was found having removed his hood and hand restraints. Perceiving this as an escape attempt, 1QLR’s Corporal Donald Payne brought Mousa to the floor and knelt on his back whilst attempting to re-apply the restraints. According to witness testimony, frustrated that Mousa was not submitting easily, Payne ‘lost control of himself’, punching and kicking the detainee and slamming his head against a concrete wall. Baha Mousa stopped moving and was pronounced dead by the unit’s medical officer. 

A post-mortem identified 93 separate external injuries: bruising, grazes, and a visibly broken nose. Mousa had also sustained numerous internal injuries, including four fractured ribs, swelling on the brain, and acute renal failure. The Inquiry found that Mousa died from the combination of the mistreatment he endured whilst detained, and the violent attack and unsafe method of restraint which immediately preceded his death. His two sons, who had lost their mother to cancer six months before the invasion of Iraq, became orphans.

Attempts at Accountability

The incident was followed by myriad attempts at achieving accountability. In the criminal realm, the subsequent Court Martial saw seven soldiers accused of various crimes related to the episode. However, after six of those cases successively collapsed, the only successful prosecution was the conviction of Corporal Payne for cruel and inhuman treatment – a charge to which he had pleaded guilty. The later Public Inquiry found that the proceedings had been fundamentally undermined by a ‘closing of ranks’.

 In September 2013, a new IHAT investigation into Mousa’s death was announced. It had the potential to spawn further criminal proceedings. And yet, four years later, IHAT was shut down without a single prosecution being brought against the almost 2,000 allegations it investigated. While Payne was held liable for Baha Mousa’s mistreatment in detention, no British soldier has ever been held criminally responsible for Mousa’s death itself.

A more successful mechanism came in the form of the Public Inquiry, which produced a chilling 1,400 page report on the conditions faced by Mousa and his colleagues under the custody of 1QLR, and how the Heath ban had come to be lost from the military’s institutional memory. However, in some respects this only served to highlight the lack of criminal accountability. The Inquiry established definitively that Mousa died due to violence and ill-treatment perpetrated by British soldiers, but yet again no one has been convicted for his murder – only the treatment that led to his death.

The Public Inquiry and IHAT were only established after significant and sustained legal pressure from Mousa’s father, Colonel Daoud Mousa. In his judicial review case, he had argued that the British state had failed to uphold its legal obligation under the European Convention on Human Rights to conduct an independent and effective investigation into allegations of unlawful killing and inhumane treatment in Iraq. It was only after the courts found in his favour, agreeing that the investigative response had been unsatisfactory, that further inquiries were instigated. The other forms of accountability, including the judicial review cases themselves and the £2.83 million settlement with Colonel Mousa and the other detainees, were also initiated by the Iraqis. This is a visible trend throughout the responses to the Iraq allegations: only after a lack of action was proven to be unlawful, did meaningful exercises in accountability seeking and lesson learning take place.

Lessons for Afghanistan

The last few years have seen Britain’s military justice system face another challenge. Since late 2017, the BBC and Sunday Times have published a series of allegations of illegal killings committed by British Special Forces in Afghanistan. Has the British government learnt from its experience in Iraq?

On the face of it, the answer appears to be no. While Baha Mousa’s death at least resulted in some criminal accountability, ten years on from the events in Afghanistan no soldier has yet been prosecuted for any of the alleged criminal activities, despite a full-blown Royal Military Police investigation into the allegations. While there is now a Public Inquiry underway, as in Iraq, it was only instigated after one of the relatives of the victims brought a judicial review case against the government. 

In stark contrast, similar allegations emerging from Australia’s Special Forces swiftly resulted in a detailed investigation by the Australian Defence Force. The resulting Brereton Report identified 39 suspicious killings involving 25 Australian personnel. One criminal charge has already been made, with the soldier in question currently awaiting trial.

However, Britain’s handling the Afghanistan allegations does indicate that some lessons were learnt from their experiences post-Iraq. While the Baha Mousa Inquiry was restricted to examining specific events, the Afghanistan Inquiry was given a far wider remit, able to assess evidence of a range of allegations and produce a much more holistic analysis. The Inquiry was also established comparatively swiftly, with far less legal pressure than those concerning Iraq. This is important because it spares the victims’ families from the pain of an adversarial legal battle. It might also reflect an understanding on the part of the British government that it is better to avoid at all costs the expensive and embarrassing proceedings of the type experienced after Iraq. 

So, what has Britain learned in the two decades following Baha Mousa’s violent death at the hands of British soldiers? Certainly, it has found that the victims of alleged British war crimes are tenacious and resolute in their search for justice, despite the significant hurdles to be overcome in fighting such a battle halfway across the globe, in a different language and a vastly different legal system. It has also discovered just how costly – both financially and politically – a seemingly endless cycle of allegations, court cases, and investigations can be. 

It is less clear whether those who have the power to make meaningful changes to the military justice system have come to understand the dual moral and strategic importance of investigating and prosecuting cases of war crimes quickly and effectively. While these lessons have come at a significant cost to the British government, they have come at a much higher price for Baha Mousa’s family. The actions of those soldiers twenty years ago left a father without his son, two young boys without parents, and a man without his life. This is too high a price to pay to recognise the importance of justice.

This piece was originally published on the Justice in Conflict blog: Our thanks to Mark Kersten and JiC for allowing us to repost.

Elizabeth is a doctoral researcher in the Department of War Studies at King’s College London, where her PhD research concerns accountability mechanisms following allegations of war crimes by British forces in Iraq and Afghanistan. She is also co-ordinator of Kings’ War Crimes Research Group, and can be found on Twitter and LinkedIn.