A judge on Wednesday dismissed charges against five British soldiers accused of mistreating Iraqi civilian detainees, but said the court-martial would continue against two other servicemen accused of negligently performing their duties.
The trial, now in its 80th day on a British army base, has tarnished the image of Britain's military with accusations of war crimes because one of the defendants, Cpl. Donald Payne, 35, pleaded guilty to the charge of inhumanely treating the Iraqi civilians, making him the first British soldier to plead guilty to a war crime under international law.
The nine Iraqi detainees allegedly were handcuffed, hooded, beaten, held in stress positions and deprived of sleep for about two days in extreme heat at a British army barracks near the southern Iraqi city of Basra in September 2003.
The court was told that Iraqi Baha Mousa, a 26-year-old hotel worker, died after taking off his hood and trying to escape, leading Payne to restrain him by kneeling on the detainee's back.
The eight other Iraqi detainees were released without charge.
Justice Stuart McKinnon ruled that two other charges against Payne, manslaughter and perverting the course of justice, should be dismissed, along with the charge of inhumanely treating detainees against two of Payne's co-defendants: Lance Cpl. Wayne Ashley Crowcroft, 22, and Pvt. Darren Trevor Fallon, 23.
The judge also dismissed a common assault charge against Sgt. Kelvin Lee Stacey, 29, and a charge of negligently performing duties against Col. Jorge Emmanuel Mendonca, 42.
Not enough evidence
McKinnon said the court-martial at the Bulford Camp army base, 85 miles southwest of London, would continue against Warrant Officer Mark Lester Davies, 37, and Maj. Michael Edwin Peebles, 35, on the charge of negligently performing their duties.
The judge, dressed in a traditional black-and-red robe and white wig, first gave his ruling Tuesday after the prosecution rested its case and the defense said the charges against their clients should be dismissed or reduced for lack of evidence.
But McKinnon ordered the verdict not be reported until he read it Wednesday to a board of military officers acting as a jury. The court room was packed with lawyers, soldiers and reporters for the reading. Some details of the ruling were being withheld to avoid prejudicing the jury for the remainder of the trial against Davies and Peebles. It is scheduled to resume on Monday.
McKinnon said in his ruling that the prosecution did not have the evidence it needed to convict Payne, Ashley, Fallon, Stacey and Mendonca.
One reason was that the hooded Iraqi civilians were unable to identify the soldiers who had allegedly mistreated or beat them. McKinnon also described as unreliable the testimony of one British soldier who had acted as a prosecution witness.
Prosecutor Julian Bevan told the court that the defendants suspected the Iraqi detainees had been involved in the slaying of six British military police officers in August 2003 and the death of a soldier in a bombing on a military ambulance in Basra.
Iraqi Ahmad Taha Musa al-Matairi, the only detainee to testify at the court-martial, said the defendants laughed as they beat one of the detainees in a sweltering detention facility and took bets on which soldier could knock him down first.
Al-Matairi testified that he was detained because he was part-owner of the hotel suspected of being an insurgent base. Soldiers allegedly found rifles, ammunition, grenades and timers as well as forged identity documents and money.