Press Release
High Court Victory for Legally Aided Iraqi Civilian
14 December 2004
A legally-aided family of an Iraqi man who died while in British Army custody have today received a High Court judgment allowing them to challenge the Ministry of Defence’s decision not to hold an independent inquiry into his death.
The ruling has created legal history because it means that the European Convention on Human Rights applies to people held in detention by British forces anywhere in the world.
Five other families who alleged that their relatives were unlawfully killed by British soldiers after the second Gulf War officially ended, were unsuccessful in their attempt to obtain a judicial review into their deaths. These individuals were not being held in custody, but allegedly died after being shot by British soldiers in their homes, cars or on the streets.
The families argued that the British Army was in "effective control" of the area and that, as a consequence, the Human Rights Act extended to Iraq at the time.
In May 2004, Mr Justice Collins decided that the cases should proceed to a preliminary hearing to decide, first, whether the Human Rights Act applied as alleged and, second, if so, what duties the government had to investigate the deaths given the circumstances. Legal Services Commission funding was provided only to pursue the preliminary issue.
Clare Dodgson, Chief Executive of the Legal Services Commission, said, "Subject to appeal, this is a historic legal ruling about the application of human rights under British law. The importance of funding this case was to clarify the legal rights of civilians in British military custody or living in post-war zones under British military control. It must be emphasised that the High Court finding carries no implication of guilt or wrong-doing by British soldiers, but rather it allows for allegations surrounding deaths in custody to be fairly and independently investigated."
The High Court has ruled that case of Mr Baha Mousa falls under Article 2 of the European Convention on Human Rights, which guarantees the right to life, and Article 3, which guarantees freedom from torture, inhuman and degrading treatment.
Mr Mousa, 26, was a Basra hotel receptionist, arrested in a dawn raid on the hotel by a squad of Queen's Lancashire Regiment troops searching for an illegal weapons cache. Along with seven others, Mr Mousa was taken for interrogation on 13 September 2003. Mr Mousa was then allegedly subjected to beatings at the army's headquarters in Basra and died in custody. The allegations are yet to be proved.
The allegations raised in the five unsuccessful cases are as follows:
Hannan Mahaibas Sadde Shmailawi
On 10 November 2003, Ms Shmailawi was with her husband and children in a room next to the gate of the Institute of Education in Basra where her husband worked. Shots were fired outside and Ms Shmailawi was hit in the head and legs. The 33-year-old was rushed to hospital by the King's Regiment soldiers involved, but was dead on arrival. The reason why troops opened fire remains unclear.
Waleed Fayayi Muzban
While driving home from work in his people carrier at about 8.30pm on 24 August, his vehicle was hit by a barrage of bullets. He died instantly. Army documents suggest a unit with the King's Own Scottish Borderers were involved. With the help of local community leaders, Mr Muzban's family tried to reclaim the vehicle from the British Army, but officers tried to buy it from them. Eventually, the family took £540, but it was unclear whether that was for Mr Muzban's death or the vehicle.
Muhammad Abdul Ridha Salim
The 45-year-old teacher was visiting his brother-in-law late on 5 November 2003 when British soldiers burst into their house in Basra. Fearing an attack by criminals, the teacher and his brother-in-law rushed downstairs, and confronted a soldier. Mr Salim was shot in the stomach and died later in hospital.
Raid Hadi al-Musawi
The 29-year-old policeman was coming home at about 10pm after dropping off a box of "suggestions and complaints" at a local judge's house on 27 August. As he neared his home in Basra, a British armoured patrol allegedly shot at him without provocation. He died nine weeks later from his wounds.
Hazim Jum'aa Gatteh al-Skeini
He and another man were on their way to a funeral after dark on 4 August 2003 when they were shot by British soldiers, dying almost instantly. Guns are routinely fired into the air at funerals and the soldiers allegedly mistook this for a gun battle. Mr Gatteh was unarmed and shot several times in the stomach.
Media Information:
Dan Kellingley, 020 7759 0415
Gary Spink, 020 7759 0493 or 07843 643052
Last updated: 28 December 2006