Next week, from January 29, not long before the 10th anniversary of the invasion of Iraq, UK lawyer Phil Shiner will present 180 statements to a high court in London. They were gathered in Beirut by Shiner and his Public Interest Lawyers team from Iraqis detained by the British army in southern Iraq between 2003 and 2008. The testimony is shocking, both because of its volume (another 871 statements are still to come), and its sickening detail.
One civilian, known only as Khalid, said, "[A British soldier] then grabbed my penis and dragged me around the floor while holding it. He also made me squat up and down whilst naked and inserted his finger into my anus. I would have preferred to have been killed than subjected to this."
Another prisoner, named Halim, claimed he was told: "F--- you and f--- Islam!" by a soldier who then "opened the belt of my trousers and said 'now jiggy jiggy'. The soldier put his boot in my chest and pulled my trousers down … The soldier put his foot on my chest … lifted me in the air and turned me on to my front."
Not just 'bad apples'
These are two of the dozens of descriptions, which feature hooding, sleep and sensory deprivation, mock executions, stress positions, threats of rape of detainees' female relatives, regular beatings, and religious abuse.
Shiner intends to show that the "bad apples" defense usually peddled by governments in such cases will no longer wash. He will argue that the sheer volume of the evidence he has gathered shows that the abuse was "systemic," and that, under the European Convention on Human Rights, a full inquiry is required.
"We've got the training materials, we've got the policy documents," Shiner told the British Observer newspaper. "Violence was endemic to the state practices."
Kartik Raj, UK-based campaigner for Amnesty International, agreed. "The allegations of abuse, ill-treatment, and death in custody - some of them are not allegations, they're proven fact - are so credible and so many, that there really does need to be an independent and thorough investigation," he told DW. "And it is something that should be looked at as a systemic issue in a systematic manner, rather than a series of individual cases where individuals have to take out a civil action against the government."
Proving systemic abuse
The importance of proving that such cases are not isolated is shown by the injustice that followed the killing of Baha Mousa. Mousa, a 26-year-old hotel receptionist, died after just 36 hours of British custody in Basra in September 2003. A British government inquiry into the death found that he had died after having been hooded for 24 hours and severely beaten. He suffered "at least" 93 injuries, including fractured ribs and a broken nose, and died, the inquiry concluded, of a combination of lack of food and water, heat, exhaustion, fear, previous injuries, and the hooding and stress positions. Andrew Williams, a law professor who wrote the book A Very British Killing on the Baha Mousa case, concluded more simply, "He was kicked to death."
Seven soldiers were charged for the war crime. Six were acquitted or had their charges dropped, while the seventh, Corporal Donald Payne, was discharged from the army, served a year in prison for "inhumane treatment," while being cleared of manslaughter and perverting the course of justice. The judge, Justice Ronald McKinnon, stated that "none of those soldiers has been charged with any offence simply because there is no evidence against them as a result of a more or less obvious closing of ranks." "A collective amnesia set in," Williams told DW.
Thanks to the sheer number and the repetition in the new statements collected by Shiner, it seems easy to establish that there was a pattern of abuse during the British army occupation of southern Iraq. According to Williams, who also works as a researcher and legal advisor for the Public Interest Lawyers, "Under international criminal law, it's not completely required that you have to prove beyond any doubt that a particular person was responsible for setting up a program of abuse." Instead, Shiner will try to "establish that there is clear evidence… that people in authority knew that it was happening, and yet nothing was done to stop it."
Some of the interrogation techniques described both in the Baha Mousa inquiry and the new testimonies - including hooding, sensory deprivation, and stressing - were made illegal in Britain in the early 1970s, following a European Court of Human Rights case on the treatment of Irish prisoners.
In light of this, the training materials for British army interrogators, some of which were disclosed in the Baha Mousa inquiry, have become key evidence. But the allusions in those manuals and Powerpoint presentations are vague. "They show that there was a degree of contempt for detainees," said Williams. "There would be comments such as, 'Get them naked.' There are certain indications in these materials that most people would see as abusive in themselves, but they also open the door for soldiers to take the material as a license to invent ways of treating detainees. You need to put together the pieces of a jigsaw."
The British Ministry of Defense's answer to all this is that any general questions about abuse were dealt with by the Baha Mousa inquiry, which resulted in 73 recommendations, as well as the ongoing work of its own internal "Iraq Historic Allegations Team." But this, says Amnesty International's Raj, is not enough.
"It's clear that the Baha Mousa recommendations, including the systemic recommendations, are based on a very, very specific time frame," he said. "I think the new issues have not been sufficiently addressed."
"The inquiry only looked at the particular systems in that particular case," added Williams. "It couldn't look at the investigation that took place after Baha Mousa was found dead, nor could it look at any other examples of abuse that had come to light. It couldn't join the dots."
'Culture of contempt'
Once they are joined, argues Williams, these dots create an image of what he calls a "culture of contempt" during the occupation of Iraq - including not only abuse of prisoners of war and civilians, but also unlawful killings on the streets.
If the high court does rule that there will be a public inquiry, it could go beyond making recommendations to actually prescribing responsibility. "From an international criminal law position, the answer to the question 'how high does it go?' is that it goes to top of government," said Williams. "But in terms of direct culpability - that's impossible to know unless you look at individual cases. As to general governmental responsibility, one has to ask who was in power at the time, who was overseeing the way that troops were operating and the means of interrogation."
The fact that the British government recognizes that there is a problem seems beyond doubt - in December it was reported that over £14 million (16.7 million euros) had been paid out to over 150 Iraqis in compensation for their treatment at the hands of British soldiers. "Why would they receive compensation, unless there was some legitimacy to their complaints?" asked Williams.