The Five Techniques

In a case recently heard in the High Court the lead applicant, an Iraqi arrested by British forces based in Basra on 16 November 2006, offered a statement that was summarised as follows:

[The soldiers who arrested him] beat him severely, slammed him against a wall and forced him into a stress position in which they stood on his knees and back. His 11-month-old son’s arm was stamped on and broken, and his father had to urinate on himself. The soldiers removed business documents, computers, mobile telephones, licensed guns and 40 million Iraqi dinars … At the [Brigade Processing Facility] the Claimant was initially hooded and earmuffed, then goggled. He was interrogated aggressively, struck with a stick and threatened with Guantánamo. In between sessions he was forced into a stress position in the cold for 30 hours and stoned and beaten. He was twice taken to medics, but not to the toilet, so he urinated on himself … [On arrival at a second detention facility] he was goggled and earmuffed, forced to undress in public and examined by a medic while naked. A female saw him nude. He spent 36 days in solitary confinement in a tiny freezing cell with restricted bedding, food and water. Soldiers beat him, prevented him sleeping by banging his door and shouting insults, restricted his privacy in toileting and showering and twice had sexual intercourse in front of him. Pornographic movies were played loudly and pornographic magazines left in sight. Soldiers exposed themselves, groped each other and masturbated in front of him … Humiliations continued at Camp B with poor conditions, beatings, food deprivation, threats, intimate searches and intimidation with dogs … He was released in November 2007 having had no explanation for his detention. His property was never returned.

This account is just one of 135 that the High Court has been invited to consider. Other complainants assert that they were gratuitously tasered and bayonetted by British troops; one alleges that his elderly mother was driven away in an army vehicle and later found dumped on the street in a body bag; another that his father was so badly beaten up he lost an eye. Several describe being made to simulate oral and anal intercourse, and some say they were ejaculated on or sprayed with urine. At least 247 identified individuals are said by the complainants’ lawyers to have been killed during poorly recorded encounters with British patrols and prison guards. That figure excludes the subjects of another investigation that convened in March to look into claims that more than twenty Iraqis were tortured, mutilated or summarily executed following a 2004 firefight known as the Battle of Danny Boy. The armed forces, for their part, have consistently refused to estimate how many people they may have unjustly killed, injured or mistreated during their six-year occupation of Iraq.

An unproved war crime is just an allegation to the people it doesn’t touch, and the conventional way of testing serious allegations is to hold a trial. A.T. Williams’s A Very British Killing is concerned with one such prosecution. The story at its centre began on a Sunday morning in September 2003, as British troops conducted a swoop on a Basra hotel. Six months on from the US-led invasion, with coalition forces quickly losing any tenuous claim they might have had on Iraqi hearts and minds, members of the Queen’s Lancashire Regiment arrested ten men they suspected of aiding the insurgency. The soldiers were jumpy – nearly a dozen of their compatriots had recently been killed, six of them beaten to death by a crowd at Basra police station – and the prisoners were picked up in the vicinity of two concealed hand grenades, a sub-machine gun and sniper goggles. But the weapons belonged to persons unknown, and any malice on the part of the Iraqis was soon eclipsed by the criminal conduct of their captors.

Over the next 36 hours soldiers of the Queen’s Lancashire took it in turn to interrogate the men. In temperatures of more than 50°C, the Iraqis were hooded and plasticuffed, forced to maintain stress positions or lie over latrines, and subjected to karate chops, sucker punches and kicks to the kidneys. Several other squaddies and officers stopped by to watch, lend a hand, or just to wonder at the stench of sweat, urine and faeces their colleagues were enduring. By the time they all called it a day, a 26-year-old hotel receptionist called Baha Mousa had been disfigured by 93 visible injuries and asphyxiated.

It didn’t end there. The first supposedly independent officer on the scene was explicitly told not to ask the other arrested men about their treatment, and a pathologist’s finding that Mousa had been strangled was left out of the death certificate, which recorded simply that he had suffered a ‘cardiorespiratory arrest’. Many months of probing by army investigators failed to establish who had been supervising the interrogations, and the flawed inquiry reached a predictable culmination in late 2006 when seven soldiers were put on trial in the soundproofed surroundings of the Salisbury Plain court-martial centre, and the case gradually collapsed – insofar as it got off the ground in the first place. The jetlagged Iraqi victims flown in to give evidence, bamboozled by seven jousting teams of defence lawyers, were forgetful, evasive or belligerent about the precise humiliations they had suffered three years earlier. Soldiers called by the prosecution were reluctant witnesses at best, and several chose to try to justify the interrogations or to vouch for the men whose guilt they were supposed to be proving. All the defendants were acquitted, and five were found to have no case to answer at all. The only man who admitted being with Baha Mousa at the moment he died, Corporal Donald Payne, told investigators that the Iraqi fatally banged his head during an escape attempt, and was cleared of manslaughter. He went to jail for 12 months, but only because he had pleaded guilty before the trial to a charge of inhuman treatment.

The effort to hold the killers of Baha Mousa to account was so inadequate that it would be easy to assume from Williams’s account that the verdicts were the result of an inherent pro-military bias in courts-martial – not least because their jury panels comprise three to seven military officers, rather than 12 members of the public. But panellists are bound by procedures similar to those of any ordinary Crown Court and they are as likely to take against soldiers who damage the armed forces’ reputation as they are to indulge them. The verdicts against Corporal Donald Payne and the others were hardly perverse. It is even possible to see why Payne himself was acquitted of manslaughter. He acted viciously towards his defenceless prisoner, as proved by a video clip the prosecution showed, but there is at least a chance other witnesses exaggerated his role, and it is no surprise that the five panellists could doubt that he was guilty of the offence he was charged with.

But justice was most certainly not done. No one was clearer on that point than the presiding judge: the only reason other soldiers complicit in Mousa’s killing weren’t charged, Justice McKinnon observed, was ‘a more or less obvious closing of ranks’. Culpability extended high up the chain of command, and though the defendants included three officers, Williams shows that their presence in the dock owed as much to a concern for public relations as to an objective assessment of the evidence. As defence lawyers argued, considerable blame also attached to unclear interrogation policies and defective systems of control. And yet the systemic defects were criticised rather than scrutinised during the trial: it was in no one’s interest to go any further.

The judicial review application currently before the High Court was initiated in the hope of casting some light on those systemic defects. It is itself the product of a long legal battle that began when lawyers acting for Baha Mousa’s father sought to sidestep the fiasco of the court-martial by invoking the Human Rights Act, which obliges states to hold independent investigations into credible allegations of physical mistreatment and untimely death. The Supreme Court ruled in 2007 that the UK government was bound to observe the act’s provisions in respect of people in army detention anywhere in the world. It also took the view that the same didn’t apply to people at liberty, with the odd consequence that people killed by British soldiers on Iraqi streets had fewer rights than prisoners. The relatives of five dead civilians had that ruling contradicted by the European Court in July 2011.

The authorities have been steadily giving up ground. Gordon Brown’s government established a public inquiry into Baha Mousa’s death in 2008; a year later, it conceded the need for another one – the Al-Sweady Inquiry – into the Battle of Danny Boy. The Ministry of Defence is also supposedly repairing the defects in its investigative procedures by strengthening the independence of a body called the Iraq Historic Allegations Team; though the only real change there so far has involved replacing its staff of Royal Military Police with the Royal Naval Police. None of this has done much to impress the Iraqis’ lawyers, whose case to the High Court is that a broad-ranging independent inquiry should be set up to identify the flaws that led to six years of British human rights abuses in Iraq.

If this country’s rhetoric is to be believed, there would seem to be little reason for the government not to agree to a full-scale inquiry. The defence services proudly proclaim their respect for the law, and UK statutes provide for the prosecution of genocide, torture and inhuman treatment wherever in the world they occur; the obligations of international humanitarian law were referred to throughout the Iraq conflict. People sympathetic to the military often contrasted the propriety of this country’s armed forces with the recklessness of their US counterparts. According to testimony given to the Commons Defence Select Committee in 2003 by an academic with close ties to the military, British service personnel insisted on ‘heavy lawyering’ ground targets identified by the Americans before consenting to their bombardment. Appearing before the committee a week later Air Chief Marshal Brian Burridge said that he ‘embraced legal advice’ whenever confronted by a tricky decision. Holding so close to the law made him feel ‘extremely comfortable’.

As Williams demonstrates, however, such claims are complacent. Evidence of systemic abuse in Iraq did first emerge from US sources, but the mistreatment of unarmed enemies has been a feature of virtually every war this country has ever fought. There were incidents of pulled fingernails in Aden, intestines ruptured in Cyprus, beheaded suspects in Malaya, and Williams could have gone back another step to the London Cage – a torture complex in Kensington Palace Gardens that the War Office used to extract information from captured Nazis – or yet further, to the concentration camps established across South Africa during the Boer War. The litany of British brutalities pushes Williams towards a single conclusion. This country’s legalistic stance is a sham, he argues, and its true history is characterised by ‘deliberate attempts to avoid legal scrutiny’. Successive governments, ‘instead of addressing the unavoidable, ignore it and then apologise for it later. Knowledge, act, apology is the institutional framework. It’s a governmental culture that the British system has displayed for decades in its numerous dirty little end of empire wars.’

That claim is a little too trenchant. An apparently remorseful state is better than one that ignores past misdeeds – if only because formal apologies make it that much harder for sanctimonious nationalists to pretend that their country is incapable of war crimes. Officials concerned with the national image are also preferable to those who don’t give a damn, and functionaries of the British system such as Robin Cook were instrumental in creating the International Criminal Court, an institution which lessens, even if it hardly removes, the legal wriggle room available to this country. A Very British Killing establishes a crucial historical point, all the same. The United Kingdom likes to flaunt its lawfulness, but fails repeatedly to prevent the recurrence of proven patterns of abuse.

This is well illustrated by parallels that link British misadventures in Iraq with those of the army a generation ago in Northern Ireland. As even champions of the Iraq invasion now admit, its planners failed adequately to prepare for what lay ahead. Soldiers primed for battle were expected also to keep the peace – insofar as anyone even considered the governance of Iraq – and their unsuitedness to that task quickly encouraged questionable tactics. By the autumn of 2003, troops were rounding up able-bodied Iraqis on the off-chance that they might resort to violence. Everyone should have known better. A similar policy of arbitrary internment had been dismally counterproductive when implemented in Northern Ireland, and the damage it did to communal relations in Iraq was equally catastrophic.

Soon after the Troubles began, members of the Royal Ulster Constabulary were found to have subjected republican prisoners to extraordinary mistreatment, including the use of blindfolds, stress positions, sleep deprivation, restrictions on food or drink, and exposure to intense noise. Lawyers wrangled for years over how to characterise these ‘Five Techniques’, with the European Court of Human Rights eventually ruling that they amounted to ‘inhuman treatment’ rather than ‘torture’, but senior politicians never tried to justify them. In the face of public outrage, Edward Heath’s Conservative government announced in 1972 that the Five Techniques had been permanently abandoned; Labour’s attorney-general went to Strasbourg in February 1977 to offer the European Court ‘the following unqualified undertaking, and I measure my words with care … The Five Techniques will not in any circumstances be reintroduced as an aid to interrogation.’

That history is now taught in every decent law school in the United Kingdom. But among the British occupiers of Iraq it carried negligible weight. An army lawyer in Basra protested when, a few days after the invasion, he saw about forty Iraqis ‘kneeling in the sand, cuffed behind their backs, in the sun with bags over their heads’, but his complaints were met with the explanation that hooding was ‘British army doctrine’. Evidence gathered after Baha Mousa’s death showed that belief to be widespread. A certain Captain Burbridge declared that hoods were ‘required’ as part of the ‘tactical questioning, conditioning and disorientation process’. Lieutenant-Colonel Nick Clapham thought hooding impermissible, but cautioned that his opinion was ‘controversial and contrary to standard practice’. Lieutenant-Colonel Ewan Duncan feared that any ban on hooding might have ‘adverse impacts upon interrogations’, especially if British troops were participating in ‘US ops where blindfolding is the milder end of the spectrum’. Graduates of the Defence Intelligence and Security Centre at Chicksands, Bedfordshire revealed that much the same could in fact be said about the British spectrum. The jargon was deliberately opaque – they spoke about exploiting the ‘shock of capture’ in order to ‘condition’ prisoners through ‘harshing’ – but the acts those terms were understood to authorise included each and every one of the Five Techniques.

In September 2011, when the Baha Mousa inquiry delivered a report that catalogued the ignorance and negligence that had allowed for the full resuscitation of the Five Techniques, the defence secretary, Liam Fox, accepted all but one of its 73 recommendations: he drew the line at a ban on ‘harshing’. As Williams notes, with some understatement, ‘it was an odd one to single out for retention. The very word … implies much more than anyone will ever define in the manuals.’ The vagueness of the term describing what is still permissible makes it that much more likely that the Five Techniques will one day be revived yet again. One can only hope therefore that when the High Court delivers its judgment, it will make clear that the government is now legally obliged to hold a comprehensive inquiry into credible allegations of war crimes in Iraq. This will require in turn that prosecutors reconsider the liability of senior military officers – failing which a complaint against the United Kingdom could end up being scrutinised by the International Criminal Court. Operation Iraqi Freedom may lie in the past, but the conflict in Afghanistan is still producing gratuitous and lethal assaults on civilians – 126 separate allegations, on the army’s own secret count – and future foreign interventions loom. If we will insist on waging wars in freedom’s name, attempting to minimise human rights abuses is the least we can do.