Single Iraq Inquiry
Ali Zaki Mousa and others v Secretary of State for Defence
The Claimants in this case, approximately 128 Iraqi nationals, sought a single public inquiry into the allegations that they were mistreated by British Armed Forces in detention facitilities in Iraq beween April 2003 and December 2008. The Claimants argued that the obligation under Article 3 ECHR to conduct an independent and effective investigation into the allegations, including arguable systemic mistreatment, can only be met by a public inquiry.
The Secretary of State for Defence (SSD) set up the Iraq Historic Allegations Team (IHAT) to investigate the allegations with a view to the identification and punishment of anyone responsible for wrongdoing. The SSD also set up a separate panel, the Iraq Historic Allegations Panel (IHAP) to consider the results of IHAT's investigations and identify any wider issues to be brought to the attention of the Ministry of Defence or of Ministers personally.
The High Court in its judgment of 21 December 2010 dismissed the Claimants' case and found that IHAT was sufficiently independent and that while the systemic issues were not outside the scope of an Article 3 ECHR investigation, it did not follow that a public inquiry was inevitable. It was not necessary to establish a public inquiry "now" and tha the SSD was entitled to await the outcome of the IHAT investigation.
The Claimants appealed to the Court of Appeal arguing that the investigative mechanism set up by the SSD was not sufficiently independent due to its inclusion of members of the Royal Military Police who were involved in operations in Iraq. The Claimants also argued that any systemic abuse of detainees would not be investigated by IHAT or in civil proceedings.
In its submission, REDRESS, as Second Interveners in the Court of Appeal (the Equality and Human Rights Commission also intervened) referred to the victims' right to reparation in international law and the investigative obligation upon States to investigate allegations of torture as an element of the right to an effective remedy. REDRESS highlighted the importance of victims and witnesses having confidence in the investigative process if it was to be effective.
The Court of Appeal held on 22 November 2011 that IHAT was not sufficiently independent. The Court found it critical that members of the Provost Branch would be investigating the possibility of culpable acts committed by the Provost Branch. The Court did not provide any specific directions as to how the Secretary of State would ensure that the Article 3 obligation would be satisfied.