Nothing To Assist Or Encourage

Nicholas Mercer writes:

In 2003, Baha Mousa was beaten to death in an illegal interrogation facility operated by the Queen’s Lancashire Regiment. He was found to have 93 sites of injury on his body, including fractured ribs and a broken nose. No one has yet been held to account for his death. 

At the public inquiry, Sir William Gage said his death “was avoidable and preventable and there can be no excuses. There is no place in our armed forces for the mistreatment of detainees. And there is no place for a perverted sense of loyalty that turns a blind eye to wrongdoing or erects a wall of silence to cover it up.” He added that it was “a very great stain on the reputation of the British army”. 

This stain, however, could be wiped away by the new secretary of defence, Penny Mordaunt. She is proposing granting immunity from prosecution to all those members of the armed forces who “turned a blind eye to wrongdoing and erected a wall of silence to cover up the crime”, so long as a decade has elapsed. In the light of the Mousa case alone, this proposition seems wholly indefensible as no one has yet been held accountable for his death.

However, there is another part to the proposed immunity that has been carefully shielded from public view. The vast majority of allegations against the UK submitted to the international criminal court (ICC) concern interrogation. The techniques used by the British army are a matter of public record. In Iraq in 2003, interrogators first used the five banned techniques. 

These techniques, which had been declared inhuman and degrading by the courts in 1978, were hooding, stress positions, sleep and food deprivation and white noise. After this was challenged, a policy of “harshing” was introduced and in 2011 publicly endorsed in the House of Commons by the then secretary of state for defence, Liam Fox. This was little better, often inflicting violence and sexual and religious denigration on the prisoner. 

Despite being repeatedly advised by military lawyers that the techniques were illegal, the government persisted. No one has ever been held to account for this “institutional error” and now these same people will potentially benefit from this amnesty. In other words, if you breach the Geneva conventions and stall for long enough, then the Geneva conventions no longer apply.

However, there is a potentially more serious example of these institutional “failings”. In last year’s intelligence and security committee (ISC) report, Dominic Grieve made it clear that UK forces not only colluded in the abuse of prisoners but were implicated in rendition. In the context of an international armed conflict, rendition is a grave breach of the Geneva conventions.

As with “authorised” interrogations, it is no fault of the soldier on the ground if they are ordered to detain and spirit an individual out of the country. However, it is the responsibility of the chain of command, including civilians, to ensure they were acting lawfully. Now this potentially grave breach could also be time-barred. We run a serious risk that those implicated in rendition in Iraq and Afghanistan are never held to account.

It also sends the message to those considering such actions in the future that they don’t have to worry too much so long as the truth remains covered up for long enough. Obstruct the investigation, as with the ISC, and you are home and dry. 

Northern Ireland remains difficult because of the amnesty for terrorists and apparent double standards. However, the recent article on “Soldier F” by Douglas Murray in the Spectator suggests that a similar situation to Mousa has presented itself once again to the courts. According to the article, although the Saville inquiry into Bloody Sunday offered immunity from prosecution for those who told the truth, “1 Para were intent on spurning this last effort to get to the truth of what happened”. 

Just like Mousa, if those under investigation keep quiet, they can run down the clock. Mordaunt’s proposed amnesty lacks coherence. It throws up potential legal results that are utterly indefensible and does nothing for the victims of such crimes or their families. It potentially shields the wrongdoer and, once again, allows the government to hide its nefarious activities from view.

The British army is a professional army that must meet the highest standards under international and domestic law. Nothing less will suffice and this proposed amnesty does nothing to assist or encourage this aspiration. 

Lt Col Nicholas Mercer was senior military legal adviser to the 1st Armoured Division during the Iraq War of 2003. He is now an Anglican priest.