In recent months the issue of inquiries into killings or torture which either involved, or which were strongly suspected of involving, the UK’s armed forces, police and security services, has seemed almost as regular a feature of newspaper stories as the state of the Euro Zone. Many of these stories come from Northern Ireland, including the re-opening of the Ballymurphy Inquests (into the deaths of eleven people shot dead by UK armed forces on the Ballymurphy estate during Operation Demetrius in 1971) and the pressure on the UK Government to hold a full Public Inquiry into allegations of police collusion in the murder of solicitor Pat Finucane (pictured above left) in 1989. At the end of October, David Cameron rejected Geraldine Finucane’s ongoing efforts to secure a full public inquiry into her husband’s murder (instead a QC will review UK Government papers regarding the murder).

Beyond local news bulletins in Northern Ireland, however, these investigations have been met with a jaded response from much of the media. Just as some commentators began to claim that the results of a string of inquiries in recent years, into events from Bloody Sunday to the murder of Rosemary Nelson, amounted to an “inquiries industry” which only served to alienate Unionist opinion by reliving the darkest days of the Troubles for the security services (without similar high-profile investigations into Republican paramilitary killings), the UK media appear to have lost interest in inquiries into a conflict which most of the UK population would rather forget.

By contrast, considerable media attention has focused on the ongoing failure of the UK Government to institute an adequate system of investigation into deaths or torture/inhuman and degrading treatment at the hands of UK forces in Iraq during the occupation which followed the 2003 invasion. Last week the Court of Appeal delivered a further blow to the government in its decision in Ali Zaki Mousa, which involved 127 claimants seeking a public inquiry into their treatment. The judgment illustrates the nature of these claims (at [5]):

(1) techniques on sensory deprivation (including hooding, sight deprivation by the wearing of blackened goggles or other means, forced silence, sound deprivation by the use of ear muffs and prolonged solitary confinement); (2) techniques on debility (including food or water deprivation, sleep deprivation, stress techniques such as prolonged kneeling, forced exertion such as forced running, temperature manipulation such as detention in unbearably hot locations or dousing with cold water and sensory bombardment or use of noise); (3) other excessive techniques (including forced nakedness or exposure of genitals, threats or rape/violence, running/dragging in a zigzag, prolonged and direct shouting, other ‘harshing’ techniques, restrictions on access to toilets and prolonged cuffing); (4) sexual acts (including forced watching/listening of pornographic videos, sexual intercourse or other sexual acts between soldiers in front of detainees, masturbation by soldiers in front of detainees, attempted sexual seduction of detainees, and no privacy on toilet or in shower; (5) religious/cultural humiliation (including urinating on detainees, not allowing detainees to pray, and taunting at prayer or other interferences); (6) other abuse (including mock executions, beatings with weapons or fists or feet, punching, slapping, kicking, spitting and dragging along the ground).

Multiplied 127 times over, these allegations paint a pattern of abuse not dissimilar from the infamous “five techniques” employed in the early phases of the Troubles (and ultimately ruled inhuman and degrading by the European Court of Human Rights in Ireland v UK). Indeed the similarity of the alleged abuse goes a long way to explaining why successive UK Government’s fought lengthy legal battles over the last seven years in an effort to deny the applicability of the European Convention to operations in Iraq. As former MoD legal adviser Nicolas Mercer declared this week, the ministry resisted the requirements of the Human Rights Act ‘at every twist and turn’.

With the defeat of these efforts, both with regard to activity within and outside UK bases (see Fiona de Londras’ post here), the number of potential claimants has now swelled beyond those involved in the existing cases, making it imperative that the inquiry process is satisfactory. In the Ali Zaki Mousa decision, however, the Court of Appeal ultimately found that the Iraq Historic Allegations Team (“IHAT”) and the Iraq Historic Allegations Panel (“IHAP”), established in March 2010, lacked the requisite independence from the UK armed forces they were investigating. The European Court of Human Rights made the need for such independence clear in Jordan v United Kingdom (2003) 37 EHRR 2 (at [106]):

[I]t 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 key issue is therefore whether the involvement of the Army’s Provost Branch in events in Iraq and in IHAT was sufficient to breach the requirement that IHAT be hierarchically, institutionally and practically independent. The Court of Appeal concluded that it was (at [36]):

[I]t 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.

Many of the cases which outlined the requirements of impartial investigation (like the Jordan case cited above, but including McKerr v United Kingdom, no. 28883/95, Kelly and Others v  United Kingdom, no. 30054/96 and Shanaghan v United Kingdom, no. 37715/97) involved the UK directly (and particularly its security operations in Northern Ireland). It remains particularly surprising therefore that the UK should continue to breach the requirements set out in these cases. This response can only be explained by a continued resistance to Human Rights processes by bodies such as the Ministry of Defence, with judgements like this being likely until the MoD adopts human rights as part of its operational culture.

But where does this leave Geraldine Finucane’s campaign for a full Public Inquiry into the murder of her husband in 1989? In many respects, the effectiveness of the Rosemary Nelson Inquiry suggests that a similar inquiry (once on the table with regard to Pat Finucane’s murder), would have provides an effective means of hearing the case. Over twenty years on, however, a mere documentary investigation by a QC is unlikely to settle this issue.

 

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Written by Colin Murray

Colin Murray is a senior lecturer at Newcastle Law School where he specialises in national security law, legal history and public law. Alongside Roger Masterman (Durham University) he is the author of “Exploring Constitutional and Administrative Law”, a textbook on UK public law. You can contact him at colin.murray[at]ncl.co.uk or (+44) 191 2225805