Britain's highest court, the House of Lords, ruled Wednesday prisoners held by British troops are protected by European human rights law — a decision rights advocates said will force the military to be more accountable in questioning insurgents in Iraq and Afghanistan.
The Lords upheld lower court rulings that human rights protections applied in the case of Baha Mousa, a hotel clerk who died after he was beaten in September 2003 while in British custody. Activists argued the ruling showed that British courts expect human rights to be respected — regardless of where the detainees are being held.
"There could now never be a British Guantanamo," said Shami Chakrabarti, the director of the civil rights group Liberty. The British will never be able to build a prison anywhere in the world and say it is a legal black hole."
Activists are now demanding a formal inquiry into the case, arguing the government suppressed evidence during a military trial. British defense officials said a judge would have to interpret whether the Lords ruling meant a new public inquiry was necessary.
"We have never argued that the treatment of Baha Mousa was acceptable or that his death should not have been investigated," Defense Secretary Des Browne said in a statement.
Mousa was arrested on suspicion of being an insurgent when British soldiers raided the hotel where he worked in the southern Iraqi city of Basra. He died after they restrained him following an escape attempt.
Soldier convicted of inhumane treatment
In March, a court martial convicted one soldier of inhumane treatment, in the first conviction of a British soldier for war crimes. Five others were acquitted in the case.
Phil Shiner, a lawyer for Mousa's family, said evidence provided at the court martial showed the attorney general had advised the army that the human rights act did not apply in Iraq. Britain had dropped a 1972 government ban on using hooding, stress positions, sleep deprivation and noise on detainees, Shiner said.
Chakrabarti said a public inquiry into Mousa's death was needed because the court martial only addressed individual guilt and not systemic failures within the military.
"This was not a one-off mishap.... This is something that was rotten at the heart of the operation, and I would expect an inquiry to expose this at the highest level," she said.
Browne said a divisional court must rule on whether the investigation into Mousa's death met the requirements of the European Convention on Human Rights.
Mousa's was one of six cases of Iraqis who were killed by British troops in separate incidents in 2003 reviewed by the Lords — the highest court of appeal for England, Wales and Northern Ireland. The cases of the other five did not involve detention — a critical factor in determining whether British laws should be applied.
"The evidence of senior British officers indicates that, on the ground, the available British troops faced formidable difficulties due to terrorist activity, the volatile situation and the lack of any effective Iraqi security forces," the lead judge, Lord Bingham, wrote.
"In these circumstances ... the United Kingdom did not even have the kind of control of Basra and the surrounding area which would have allowed it to discharge the obligations" of the human rights convention," Bingham wrote.
In 2005, the Court of Appeal upheld a High Court ruling that both the European Convention on Human Rights and the domestic Human Rights Act applied in Mousa's case, but not in the others. The Lords stood by that ruling.