Not Saussure

March 13, 2007

Ill-treatment of Iraqi prisoners authorised — by whom?

Filed under: Iraq, Law, War on Terror — notsaussure @ 10:36 pm

Now this is very interesting. The BBC reports that the reasons judge advocate Mr Justice McKinnon dismissed the charges against Col Jorge Mendonca of negligently performing the duty of ensuring Iraqi detainees were not ill-treated by his men can now be published, following the dismissal of the remaining charges against the other defendants.

The evidence of Maj Antony Royce was key to the colonel’s acquittal. He told the hearing how the brigade’s most senior legal advisers had approved the “conditioning” of suspects before interrogation.The major also testified that Col Mendonca had asked him about the treatment of detainees.

Mr Justice McKinnon ruled in favour of Col Mendonca’s no case application, saying: “It may be said that Maj Royce’s evidence has greatly undermined the prosecution case.

“His evidence proved uncontroversial [in the legal sense] and credible and more than capable of belief.”

The judge said Maj Royce’s evidence showed that the brigade “sanctioned the conditioning process – the very thing the Crown sought to prove otherwise”.

Maj Royce’s evidence, the judge said, also “shows Col Mendonca sought to satisfy himself that the conditioning process was acceptable under the laws of armed combat and the Geneva Convention”.

“This case is remarkable for the fact that no witness has given any evidence to the effect that Col Mendonca did not do anything that he should have done, or that he did anything he should not have done.”

That is, the learned judge advocate (who is also a High Court circuit judge) didn’t say there was nothing wrong with the treatment of the Iraqi prisoners, which included — at least according to the Prosecution’s case — techniques such as stress positions that have banned in the British army since 1972, after an investigation into their use in Northern Ireland.

On the contrary, he accepted that Col Mendonca’s and Maj Royce’s account that they’d both questioned the use of these techniques but had been told they’d been cleared at brigade level.

Where does this leave us? Looks suspiciously to me as if Col Mendonca and his colleagues were supposed to take the rap for decisions taken far higher up the chain but the court didn’t want to play.

What happens next? Someone authorised the illegal treatment of these men — are we supposed to take it that a very senior officer so did, or was he acting on instructions from his political masters? Since I tend to trust the military rather than our present government (that’s not meant to be a back-handed compliment), I rather suspect the latter.

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  1. Shouldn’t be the work of genius (which is lucky because the SIB would be given the job) to find out who the Brigade, and Multi-National Division (South-East), legal advisors were at the time.


    Comment by Surreptitious Evil — March 14, 2007 @ 6:44 am

  2. I’m able to assist the SIB with that, at least to an extent.

    The Times reported, back in November, that

    Major Antony Royce, called as a witness by the judge in the case, told the court that he was instructed by those higher up the chain of command in Basra to use “conditioning techniques”, including putting prisoners in stress positions and hooding them, to prepare detainees for tactical questioning.

    He said that the advice had come from a senior army legal adviser. Such techniques are against both the Geneva Convention and the Army’s own rules of engagement.

    Major Royce told the court that, after being put in charge of internment, he was told by Major Mark Robinson, a brigade intelligence adviser, to “condition” prisoners. Fearing that this might contravene prisoner-handling tuition he had received in Britain, Major Royce said that he then checked with Major Russel Clifton, the brigade’s legal adviser, and was again told that ” conditioning” and hooding were acceptable.

    “He [Robinson] instructed me to use conditioning as part of the tactical questioning process,” he said. “I then contacted Major Clifton to make sure that what I had been told was right.”

    Julian Bevan, QC, for the prosecution, put it to Major Royce that both men deny having said that conditioning was acceptable. Of Major Robinson, Major Royce replied: “But he did [say so].” And of Major Clifton he countered: “Yes, he did.”

    He added: “They washed their hands of it, and left us to it.”

    The judge’s remarks yesterday make it clear that he accepted Major Royce’s evidence — significantly, he’d insisted on calling Major Royce, which suggests to me he thought something fishy was going on:

    Mr Justice McKinnon ruled in favour of Col Mendonca’s no case application, saying: “It may be said that Maj Royce’s evidence has greatly undermined the prosecution case.

    “His evidence proved uncontroversial [in the legal sense] and credible and more than capable of belief.”

    The judge said Maj Royce’s evidence showed that the brigade “sanctioned the conditioning process – the very thing the Crown sought to prove otherwise”.

    The next question, to my mind, is why Majors Robinson and Clifton gave such mistaken advice. This isn’t like the Americans trying to say that, while most people think waterboarding is banned, they don’t; the whole reason Colonel Mendonca and Major Royce questioned the instructions was that this was something they’d previously been told was banned by the Army.

    Did Majors Robinson and Clifton unilaterally decide to tell them to go ahead anyway? Sounds a bit unlikely to me; I suspect someone must have told them the policy had changed, and I’d love to know who that was.

    Comment by notsaussure — March 14, 2007 @ 12:05 pm

  3. /delurks/ been reading this excellent blog for a while. Never commented. Am staggered that more is not being made of this. You might be interested in I’m no expert on military law and the geneva conventions, but it seems to me that something fishy is going on here. But it does seem odd that certain things were not put to the jury by the judge.

    Comment by Bondwoman — March 14, 2007 @ 2:02 pm

  4. Remember that at a court-martial, it is not a jury sitting – it is the “members of the court”. I do know a little about military law and standard procedures and where the issue with the 3 Para case was on a patrol, the issue here was much more clear – it was conduct at the “Theatre Internment Facility”. Under such circumstances, detainees would normally have been in the custody of (or, at least, in custody supervised by) trained soldiers of the Royal Military Police, not infanteers. (This does not mean that Military Intelligence interrogators would not be permitted access.)

    There may be something up here shortly.

    The ICRC have details of the Geneva Conventions here.

    The relevant convention is the 4th Geneva convention – Bahar Musa was a civilian not a known combatant (who would have been protected under the 1st or 3rd Conventions or, if considered outwith those, should have been handed over to the civilian legal authorities.) The enabling UK law is the International Criminal Court Act 2001 and courts martial can try cases under civil law in accordance with Section 70 of the Army Act 1955.

    Advice, from the chain of command, that conduct contrary to (any of) the Geneva Conventions is also likely to be criminal under Article 8 of the Statute of the International Criminal Court, which specifically mentions “when committed as part of a plan or policy” and this would probably fall under 8(a)(iii). If a soldier commits such an act off their own bat, it is a crime (and can be tried and punished under the Army Act) – if there is a plan to do it, it is also a war crime. We wait to see.

    Hope that made some sense.


    Comment by Surreptitious Evil — March 14, 2007 @ 3:16 pm

  5. Last night’s Panorama was on this, and it was devastating. If anything, I think they made the wrong decision in moving the programme forward to right after the end of the court martial rather than advertising it in advance. You can see it again at the site:

    Comment by . — March 14, 2007 @ 7:38 pm

  6. Why, thank you, Bondwoman, both for the compliment and for the article.

    I’m hardly an expert in this matters, either, but I think — from what the BBC gives of the judge’s reasons for throwing the case out at half-time, anyway — is that it didn’t go to the panel (they don’t have juries in courts martial, do they?) was to do with the way the charges had been framed.

    Colonel Mendonca was accused of being responsible for the hooding and stress positions in that he negligently performed the duty of ensuring Iraqi detainees were not thus ill-treated by his men. Since he’d questioned the instructions to ‘condition’ detainees in this way and been told that it was Army policy so to do, he couldn’t have been negligent, or so it seemed to the judge.

    Contrary to what the article seems to argue, the other soldiers were accused of ill-treating the detainees not by hooding them or making them assume stress positions but by beating them up. While certainly the detainees were beaten up very badly, the judge thought the main (and, in some cases, only) prosecution witness who said they’d been beaten by the men on trial, Private Jonathan Lee, wasn’t reliable.

    In throwing out the charges against Pte Fallon and L/Cpl Crowcroft, the judge said Pte Lee’s evidence contained “a catalogue of unexplained inconsistencies” and “downright lies”.

    He added: “Pte Lee was a useless witness. Pte Lee’s evidence is incapable of belief.

    “Without Lee’s evidence it is clear that the Crown has no case against Cpl Crowcroft and Pte Fallon, therefore the Crown’s case must fail.”

    Consequently, while there’s no doubt the Iraqis were seriously assaulted, there wasn’t any reliable evidence that any of the accused were involved in the assaults.

    Comment by notsaussure — March 14, 2007 @ 8:20 pm

  7. I’m not sure if anyone here saw last night’s Panorama, but there seems to have been either a major cover-up, or a closing of ranks. The lawyer for Corporal Payne, the one soldier who admitted to mistreating the Iraqis, said that “I can’t remember” was used over 600 times by those who were called to give evidence.

    Comment by . — March 14, 2007 @ 8:44 pm

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