Lawyers
for Defence Secretary Geoff Hoon had argued the convention did not
apply to British troops in Iraq as it was outside European
jurisdiction.
They
contended the Human Rights Act, which incorporated the convention into
British domestic law, was, with rare exceptions, “exclusively
territorial” and could only be applied inside British territory.
The
court ruling could affect some 30 other similar cases.
Under
the ruling, British soldiers could be put on trial for human rights
abuses against people in their detention anywhere in the world, the
Guardian said Wednesday, December 15.
The
MoD described the judgment as having wide implications for current and
future military operations. “We will have to reassess all our
procedures,” one defence official told the daily.
Historic
Day
“Today
is a historic day for human rights and the rule of law in the United
Kingdom,” Phil Shiner, a lawyer for the Iraqi families told AFP.
“The
High Court has ruled that in the cases of civilians killed or tortured
in detention in Iraq the European Convention on Human Rights applies
to British forces,” he added.
“It
has ruled that there has been a violation of articles two -- right to
life -- and three -- prohibition of torture -- and in particular the
obligation to carry out an independent investigation,” he said.
In
a summary of their ruling, the judges said they were only concerned
with whether the deaths took place within British jurisdiction and
fell within the scope of the Human Rights Convention.
They
then tried to determine if there had been a breach of articles
concerning an adequate inquiry into the deaths.
They
ruled that a state's jurisdiction was “essentially territorial”,
but in certain exceptions extended “to outposts of the state's
authority abroad”, such as embassies and consulates.
The
judges said this exception could apply “to a prison operated by a
state party in the territory of another state with the consent of that
state”.
But
it did not apply “to the total territory of another state which is
not itself a party to the Convention” even if its territory was
“in the effective control of the first state”.
A
spokesman for Prime Minister Tony Blair said “obviously we'll need
to study” the judgement. “I'd also like to point out that a
separate criminal case is currently being considered by the army.”
Last
Words
Mousa's
father, who came to England seeking a fresh investigation, told the
court earlier how he was “horrified” by the state of his son's
body and could not bear to look upon him.
The
“last words” of the 26-year-old were described in a witness
statement from fellow hotel worker Kifah Taha Al-Mutari.
He
told a packed court detainees were hooded, deprived of sleep, had
freezing water poured over them and became the victims of
“soldiers’ games”, including a version of kickboxing in which
British troops would compete “as to who could kick box one of us the
furthest”.
On
the third night of his detention, Al-Mutari said he could hear Mousa,
in a separate room, saying he was bleeding from his nose. The last
words he heard Mousa say were: “I'm a dying ... blood ... blood
...”
“Dilatoriness”
The
court also delivered a damning critique of what it called the
“dilatoriness” of the army's investigations into the incident.
“They
were not independent; they were one-sided; and the commanders
concerned were not trying to their best,” the judges said.
The
Legal Services Commission, which administers legal aid, said the
ruling meant the European human rights convention applied to people
held in detention by British forces anywhere in the world.
Clare
Dodgson, its chief executive added: “It must be emphasised that the
high court finding carries no implication of guilt or wrongdoing by
British soldiers, but rather it allows for allegations surrounding
deaths in custody to be fairly and independently investigated.”
