Eleven UK soldiers face war crimes trial

#1
From the Independent

http://news.independent.co.uk/uk/legal/story.jsp?story=642356

This story is also mentioned in the Sunday Telegraph, with Patrick Mercer (Tory MP) calling the prosecutions "politically motivated".

I hope the accused have access to the best possible legal advice. Let's see some senior MoD faces - and maybe even Bliar and Goldsmith - summoned to give evidence!

Eleven UK soldiers face war crimes trial
By Severin Carrell and Andrew Johnson
29 May 2005


Up to 11 British soldiers and officers are under investigation for alleged war crimes over the death of an Iraqi civilian in British custody, The Independent on Sunday can reveal.

Military lawyers are considering the charges as part of a major inquiry into allegations that members of the Queen's Lancashire Regiment beat Baha Mousa, a hotel worker, to death in September 2003. As the IoS disclosed last week, the officers include the regiment's commander, Col Jorge Mendonca, 41, who has been warned he could be tried for allegedly failing to control his troops effectively. There is no allegation that he took part in any abuse.

At least four QLR members, thought to be privates and NCOs, face specific charges of murder and abuse over Mr Mousa's death from heart failure and asphyxia, allegedly due to multiple injuries, on 15 September 2003. But alongside another seven soldiers and officers, the four alleged assailants also face wider war crimes charges.

Whitehall sources have insisted that no final decisions have yet been taken on who to prosecute, or on what charges. They indicated yesterday that not all the suspects are expected to stand trial, but believe as many as nine men could face a court martial.

Army sources yesterday indicated there was disquiet throughout the service at the charges. One source added: "Military law already exists to deal with these kinds of charges. Why the apparent push to bring them under this draconian new war crimes legislation?" He said many soldiers suspect these charges were considered only after the court martial of three soldiers in February, for abusing alleged Iraqi looters at Camp Breadbasket, led to criticism that no one above the rank of corporal was charged.

Another eight Iraqis arrested with Mr Mousa are preparing to sue the UK after claiming they were systematically abused and tortured by British troops. Another detainee, Khifah Taha, was also hospitalised and narrowly escaped death after suffering acute kidney failure allegedly as a result of a sustained beating while in British custody.

Army prosecutors and the Attorney General, Lord Goldsmith, are under intense legal and political pressure to investigate properly Mr Mousa's death, after the High Court ruled last December the UK had broken the Human Rights Act by failing to prevent his death or prosecute his alleged assailants quickly.

The UK is facing a formal investigation by the International Criminal Court in The Hague over allegations that the UK broke international law in Iraq by using cluster bombs in urban areas and by attacking power stations. The ICC is also studying war crimes claims based on the Mousa case and the deaths of other Iraqi civilians.

The ICC has written formally to the Ministry of Defence, asking for comments on allegations raised in a detailed legal dossier submitted by the British legal group PeaceRights, and earlier complaints by the Athens Bar Association.

A QLR spokesman said yesterday: "We are full square behind the Baha Mousa investigation and if individuals are found guilty of being involved in the tragedy, the regiment wants them out more quickly than anybody else does."
 
E

error_unknown

Guest
#2
We've shot ourselves in the foot over this, by our insistence on trying Commanders from the various Balkans factions for crimes committed by their subordinates which they had no previous knowledge of. No wonder the USA is declining to participate in the International Criminal Court (or whatever it's called).

If this goes on, it will be possible to indict decision makers at all levels of command, presumably including the political. Tony Blair will need to be careful where he takes his holidays in future, unless he feels like getting 'Pinocheted'.
 
#3
Ok if wrong doings are going on, let the law have them, but when are we going to see prison officers/police et al with their bosses on trial for deaths in their custody?

HMF in Iraq are a safe bet for the politico's to let go to the scrapheap without much consequence effecting them.

If the officers are going to be held accountable, so therefore must not the government as their bosses?


c_c now heading back out of current affairs...
 
#4
What evidence links Slobodan Milosevic and his minions? Was there a smoking gun memo that said "ethnically cleanse (ie murder and displace) Kosovars, Croats and Bosnians"?

The atrocities of the Balkans and the incidents in US/UK custody cannot be compared.

However, the same investigative process must apply. Questions have been asked as to how much Bliar (and others) knew about interrogation abuses at Abu Ghraib and Guantanamo Bay. Bliar gave an answer to Parliament that was in all probability misleading, as to the extent of his knowledge.

Bliar is also the authority for military action. As the lickspittle Eric "William" Joyce pointed out, the prerogative power of the sovereign to initiate military action has devolved to the prime minister. Clare Short's bill would change this and require a parliamentary vote. So, at the top, the responsibility belongs to one man.

Incidentally, the back page of the Sunday Torygraph claims that the Wicked Witch is likely to leave Matrix Chambers, because of friction with other lawyers who firmly believe that Bliar should be in the dock! :twisted:
 
#5
I don't know what the burden of proof is regarding de facto responsibility for alleged war crimes. As MrPVRd said, if there is physical evidence of an order to carry out an action that is considered to be a war crime, then that is one thing. If there is merely an argument that the superior NCOs and Officers bear responsibility for the actions of their juniors simply because they are 'up' the chain of command, then there is an argument that Bliar should be in the dock with them.

Further to Chickenpunk's comment on Pinochet; Amnesty International has commented thus on the case of trying former Heads of State for war crimes:
"The UK courts have confirmed that people accused of crimes such as torture can be prosecuted anywhere in the world.

They have also firmly established that former heads of state are not immune from prosecution for such crimes," Amnesty international said.
See here for the full article.

Chickenpunk (or anyone else who actually KNOWS the answer!) With reference to the "I was only following orders" defence, can a junior (OR or Officer) request a written order if they are unhappy with an order that they are given verbally?
 
E

error_unknown

Guest
#6
DozyBint said:
Chickenpunk (or anyone else who actually KNOWS the answer!) With reference to the "I was only following orders" defence, can a junior (OR or Officer) request a written order if they are unhappy with an order that they are given verbally?
Actually they have a legal responsibility to disobey any illegal orders that they are given, something which is considerably easier said than done. It is also fair to say that any commander who is unclear about the orders that they are given must seek clarification before attempting to put them into practise.

The real issue here seems to be that there is an extension of the concept of command responsibility for war crimes beyond what was practised at Nuremburg and the other post-WW2 processes: i.e., that Commanders must take responsibility for orders that they give, and that subordinates must take responsibility for carrying out orders, whether illegal or legal. As I understand it, the precedent has now been set, as the result of the Hague process, for Commanders to be prosecuted for the actions of their subordinates, even if they were not following orders or were acting against orders; and also that Commanders can now be prosecuted if they fail to take action against subordinates who they believe have committed war crimes.

In some respects, one can see the point of this but at the same time, it is quite evident that it's going to cause great problems in the future conduct of military operations because it seems to ignore the issue of 'the fog of war'. On a slightly different tangent, it also incentivises politicians to get their military subordinates under investigation ASAP as soon as any allegations arise, no matter how trivial, because it gets them off the hook. Great for morale.
 
#7
The Belgians have passed an astonishing law that allows them to indict anyone, anywhere for human rights abuses and war crimes. It's political grandstanding, of course. Belgium couldn't enforce a law regulating the temperature of waffles in my opinion.

However, as CP points out, Blair et. al need to be a little bit wary: one lefty lawyer in Brussels could lay an information (or the Belgian equivalent) and voila! Blair's collar felt. Embarrassing.

Of course, it's a case of physician heal thyself: Belgian's criminal justice system is a disgrace.

V!
 
#8
As I recall from QRs, if presented with an order you believe to be illegal, you can question it. If the order is reiterated, then it must be obeyed.

I believe that there is a grey area between this QR and the Geneva Conventions, UK criminal law etc. This may be to do with a perception that a scenario may exist where the Geneva Conventions etc have no validity, or with a desire to ensure that the system of military obedience is given primacy. Also, an order may be perceived as illegal even if it is not and the ordered party may be incorrect.

In a situation where an order is illegal, and it it questioned and reiterated, then the ordered party presumably has the choice of refusing the order and exposing themselves to sanction under military law, or obeying the order with the perceived risk of a criminal prosecution. This may not be as clear-cut as "execute that man, Bloggs" and is likely to have manifested itself as "put a bag over that man's head, Bloggs".

If evidence of abuse has been presented to the command chain (for example, complaints from British Foreign Office ( :roll: ) officers at Guantanamo Bay or from service personnel at Abu Ghraib) and this information has been ignored, discarded or suppressed, then the command chain would surely be complicit.
 
E

error_unknown

Guest
#9
MrPVRd said:
As I recall from QRs, if presented with an order you believe to be illegal, you can question it. If the order is reiterated, then it must be obeyed.
That's not something I was ever taught and is, in practise, unworkable. If I ordered a soldier to cut his own ear off, he would quite likely refuse to do so. If I reiterated the order, he would still refuse to do it. I can then charge him with disobeying a direct order to which his defence would be, 'It was an illegal order' and I have no doubt whatsoever that his defence would be accepted and I would be the person who ultimately came out of it worst. The same would be true, I hope, if I ordered my soldiers to burn down a Northern Irish village (say Cullaville) and bayonet the occupants. However often I reiterate an illegal order, it doesn't make it legal and my subordinates are under no obligation to obey it.
 
#10
That's not something I was ever taught and is, in practise, unworkable. If I ordered a soldier to cut his own ear off, he would quite likely refuse to do so.
The orders framework is not only provided by QRs, but by other rules and procedures such as taught under the heading of the law of armed conflict. and, for example, health and safety legislation that devolves responsibility the CO.

I probably mangled what I was trying to say, which is that QRs themselves do not provide cast-iron mechanism for refusing an order perceived to be illegal. It is nearly a year since I had the pleasure of glancing at QRs and I cannot now recall if the QR in question refers to the issuer of the order or the command chain, with regard to any questioning the order. I suspect that any grey area is deliberate and is designed so that supporting legislation (LOAC stuff, H&S stuff) could be disregarded as and when required, or so that the obedience of orders retains its primacy. Naturally, any scenario in which this happens is beyond my imagination, but probably not beyond the mind of Donald Rumsfeld, for example.

It is entirely correct to point out that anyone ordering his troops to cut off their own ears or to burn a village will certainly find themselves being disarmed and restrained pending the arrival of medical or police help!
 
#11
Read in another of today's papers (forget which) that doing things this way will allow for all of those in the chain being brought to justice - officers and all. If this is so, then it is an improvement on what we have seen before where the tom gets done but the brass get told they were maybe a bit over keen.
 
#12
I dont know about any of you but i 've been in several platoons who would jump at the chance of burning a village down if ordered too .The idea that private soldiers have a deep felt moral compass is dubious
 
#13
http://www.timesonline.co.uk/article/0,,2-1194893,00.html

His father, Colonel Daoud Mousa, who worked for the Basra police force, said: “I went to the hotel to pick up my son from work. I noticed that a British unit had surrounded the hotel. I saw soldiers breaking open a safe. I noticed that three soldiers were transferring money from the safe into their pockets.I presented myself as a retired police officer and was allowed to meet with the officer in charge.”

Colonel Mousa said that the officer, “Lieutenant Mike”, called the soldiers over, slapped them and confiscated their weapons. “While this was going on, I noticed that my son and six other hotel employees were lying on the floor with their hands behind their heads.
It is a very interesting moment. Who is this leutenant Mike. Were the soldiers punished for attempt to steal money? Is story om mr.Mousa true?

“I approached Lieutenant Mike again, pointed out my son and asked whether they had any case against him. He said that this was just a normal investigation that would be over in a couple of hours.”

On the third day after his son’s detention, Colonel Mousa was visited by a military police unit and informed that his son had died.
Why does this investigation require so much time?
 
#14
"... slapped them and confiscated their weapons ..."

This just doesn't ring true to me. Screamed the word f@ck a lot and had them marched away by a SNCO is fine, a quick punch and a boot up the arrse maybe, but slapping and making a pile of rifles ? It sounds like the sort of thing the Iraqi army under Saddam would do. And if you were an Iraqi who'd been approached by some bloodsucking British lawyer looking to drum up business it's just the sort of thing you'd make up to oblige and get some free cash from HMG.

And how come this chap got let in anyway ? Retired police officer or not, if a bunch of squaddies were looting the place he'd have been told "f@ck off you camel shagging c@nt" and f@cked off at the high port.

Or am I being too cynical ?
 
#15
So the CO may be for the high jump for what his troops may have done.
Frieghtning, but fair after all he trained them.
This case opens a can of worms, just how far up the chain of command goes responsibility for the actions of troops on the ground, assuming they are found guilty?
A Brit officer slapping his troops in the face ! Gobsmacked er sorry I do not beleive it.
This case stinks, from the top to the bottom.
john
Be nice to think Justice will prevail.
 
#16
MrPVRd said:
That's not something I was ever taught and is, in practise, unworkable. If I ordered a soldier to cut his own ear off, he would quite likely refuse to do so.
The orders framework is not only provided by QRs, but by other rules and procedures such as taught under the heading of the law of armed conflict. and, for example, health and safety legislation that devolves responsibility the CO.

I probably mangled what I was trying to say, which is that QRs themselves do not provide cast-iron mechanism for refusing an order perceived to be illegal. It is nearly a year since I had the pleasure of glancing at QRs and I cannot now recall if the QR in question refers to the issuer of the order or the command chain, with regard to any questioning the order. I suspect that any grey area is deliberate and is designed so that supporting legislation (LOAC stuff, H&S stuff) could be disregarded as and when required, or so that the obedience of orders retains its primacy. Naturally, any scenario in which this happens is beyond my imagination, but probably not beyond the mind of Donald Rumsfeld, for example.
I don't know of any where in the QRs which states this - most immediate is Part 3 orders (5.121 et seq). I have however been involved where illegal orders were issued - that was subsequently a matter that was raised and dealt with at Court Martial.

Ultimately if an individual believes the order to be illegal then he is duty bound to refuse to obey it. The practical effect is of course very different. By getting the order in writing or by having it repeated is merely to seek clarification. If the order is still as the individual belives it to be illegal then we are back to this first part of this paragraph.

It is interesting to note that while some in the higher army legal circles wish the power of discipline to be removed from a CO there is an attempt to widen the ambit of the law to cover the 'culpability' of a CO for alleged actions of some of his soldiers. Of course this has to be seen in context of the general criminal law and QRs 2.016 and 3.001.

I am afraid it is all going to end in a sticky mess and frankly is an attempt by the government to get themselves off the hook when they fear they themselves may be made answerable before the ICC - they've adopted this tactic before and are not afraid to adopt it again.
 

OldSnowy

LE
Moderator
Book Reviewer
#17
Exactly what are these Soldiers accused of stealing? If Iraqi banknotes, then good luck, useful for stuffing pillows, but little else...

There was NO-ONE in Iraq - apart from a few Tikritis in Baghdad/Tikrit with anything in notes worth stealing until well after the Colaition arrived and made with the $US.


Back to the military viewpoint, how high up does this stop? CO, Bde Cdr, GOC, higher? Why not up to Mr Bliar? No wonder Soldiers are having problems here.
 
#18
OldSnowy said:
Exactly what are these Soldiers accused of stealing? If Iraqi banknotes, then good luck, useful for stuffing pillows, but little else...

There was NO-ONE in Iraq - apart from a few Tikritis in Baghdad/Tikrit with anything in notes worth stealing until well after the Colaition arrived and made with the $US.

Back to the military viewpoint, how high up does this stop? CO, Bde Cdr, GOC, higher? Why not up to Mr Bliar? No wonder Soldiers are having problems here.
Dear OldSnowy!

http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/03/31/wirq31.xml

The MP, a member of the Shia coalition, said British tanks and helicopters surrounded his house before soldiers blew open the front door with explosives.

"They smashed the windows of the cars parked in the garage, smashed the computer to the ground and took $260,000 from the house," said Mr Mansour, who comes from one of southern Iraq's wealthiest families.

"The reason for the violation of my immunity has not been explained and my money has not been returned. I demand compensation." He said his children were also detained and had been left scarred by the experience.

"Basically we are very sorry," a spokesman said from the Army headquarters in Basra. "We made a mistake, we apologise for it and we will do our best to make sure something like this does not happen again."
Most of Iraqis are extremely poor but some are rich enough (even from Western point of view). No doubt that owner of the hotel is a rich person. Also those who lived in the hotel stored their cash in the safe too.

We discussed this story here.

http://www.arrse.co.uk/cpgn2/Forums/viewtopic/t=14888/highlight=Tamimi.html

Btw, my comment was deleted for mysterious reasons.

Your reply deleted KGB_resident, because it's not clear as to whether this post was humour, or you're the resident GRU spook west of the Euphrates.
No doubt that owned of the hotel is rich person. Also those who lived in the hotel stered their cash in the safe too. I think that the soldiers saw $$ in the safe, a lot of them.
 

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