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Article Excerpt
[Between March 2003 and September 2004, 100 000 Iraqis are believed to have died as a consequence of the invasion of Iraq on 20 March 2003. Baha Mousa, an Iraqi hotel clerk was one of them. Mr Mousa died in Basra on or around 15 September 2003, after sustaining 93 separate injuries while in the custody of British soldiers belonging to the Duke of Lancaster's Regiment. This think piece is about the law produced and invoked by his death.]
CONTENTS I Introduction II Unlawful Conditioning III Common Law Crime IV War Crime V Human Rights Violation VI Baha Mousa How violent Schultz had sounded over the telephone. 'I want justice,' he had said. I wonder how many murders have been committed, and how many wars have been fought with that as a slogan ... Justice is a thing that is better to give than to receive, but I am sick of giving it ... I think it should be a prerogative of the gods. (1)
I INTRODUCTION
On 14 September 2003, in Basra, southern Iraq, a hotel receptionist named Baha Mousa (2) was detained by soldiers of the British Army's Duke of Lancaster's Regiment. Mousa and several other Iraqis were brought to a detention facility operated by the United Kingdom Armed Forces, and formerly run by Saddam Hussein's cousin, Ali Hassann al-Majid, better known as 'Chemical Ali'. Thirty-six hours later, Mr Mousa's family were informed that Mr Mousa had died during detention. A subsequent post-mortem revealed that he had received 93 separate injuries, including a broken nose and fractured ribs--other prisoners suffered serious kidney damage. (3)
The reaction (on the part of the military, the legal profession, the media and the British establishment) to this incident tells us a little about the way international criminal law works. Mousa's death provoked an extraordinarily diverse array of legal and political responses. These encompassed everything from the confusion and neglect that marked the initial British reaction; fury and recrimination among Iraqis; prosecution under the Army Act 1955 (UK); (4) the first conviction under the UK's International Criminal Court Act 2001 (UK); (5) the trial (on charges of negligently performing his duty to prevent maltreatment of civilians) and acquittal of a commanding officer not present at the place of detention; (6) a human rights case (in which relatives of Mousa argued for the application of the European Convention on Human Rights (7) and the Human Rights Act 1998 (UK) to the Mousa detention); (8) and an attempt by the UK Government to settle the case by offering the Mousa family monetary compensation. (9)
This think piece largely will be about the range and interaction of legal responses to the Mousa death. But I hope, too, that somewhere in the contours of this sorry story there are traces of the human dilemma we face in doing international criminal law; a dilemma marked by the twin pathologies of wanting justice and being 'sick of giving it'. (10)
The Iraq War has been thoroughly 'juridified'. (11) Mousa's death and its consequences represent only a sample of the manoeuvring around and through law that has become a mark of this episode. I have spoken elsewhere about the public enthusiasms expressed and tamed through legal language, about the angst of international lawyers who elect to use law to struggle with and against war, and about the broader turn to retribution in international law that the Iraq War has represented. (12) The war, though, has produced also a mountain of jurisprudence and, what Judith Shklar has called, tribunality. (13) Some of this has not involved the courts directly. In the UK, there have been two major inquiries into matters arising out of the war. In the Hutton Inquiry, following Dr David Kelly's suicide, Lord Hutton, a former Law Lord, concluded that the BBC had acted improperly in broadcasting a news item alleging that the Government had 'sexed up' an official intelligence report in order to make Saddam appear more dangerous. (14) The Butler Inquiry covered some of the same ground but was more broadly directed at the relationship between the intelligence services and the political arms of government. (15) Sir Robin Butler concluded that the British Government was innocent of having dishonestly led the UK into war. At most, he found that ministers may have 'subconsciously' influenced the intelligence community into making inflated assessments of Iraq's weapons capability. (16) In Australia, of course, the Cole Inquiry into the Australian Wheat Board ('AWB') scandal found that the Department of Foreign Affairs and Trade and the Government were misled and lied to by corrupt AWB directors who had connived to pay the Iraqi Government illegal, disproportionate and deliberately concealed 'inland transportation fees' as part of the United Nations' Oil-for-Food Programme. (17)
The courts themselves, though, have been central. Doe v Bush (18) was an early American effort to have the judiciary involved in an explicit evaluation of the war, but it is in the UK where juridification in the courts has flourished. Historically, war, of course, has not proved susceptible to legal regulation within the UK (or the United States and Australia). (19) This mirrors a similar difficulty at the international level where the project to criminalise aggression, apparently consolidated at Nuremberg (20) and Tokyo, (21) is close to collapse in the face of disagreement about the nature of war (necessary? aberrant?); institutional competence over war (the Security Council? the International Criminal Court ('ICC')? the International Court of Justice?); and the definition of aggressive war (armed attack? use of force? pre-emptive self-defence?). (22) These three difficulties share a common source. Law is about regulating social life (codification) but it is also about constituting and patrolling the borders between areas of social life regarded as law-full and those where law is evacuated in favour of politics (jurisdiction). In the zone of the political, law's prerogatives are circumscribed. But law has a hegemonic impulse to cover the field and the globe with its own normativity. So, contrary to the conventional portrait of a weak normative regime and a rampant political sphere, politics often struggles to preserve its jurisdiction in the face of invasion from law and the legal form. The sharpest site of this confrontation, and law's greatest challenge, is the sphere of war or the deployment of armed force. This is where politics has tended to prevail. The regulation of armed force at the international law level has proved troublesome because war remains the last bastion of the political. (23) This accounts for the failure to achieve a satisfactory definition of aggression after just short of a century's worth of effort. (24)
In the domestic sphere, meanwhile, the executive has insisted on its exclusivity over war-making. In the US, this exclusivity has been preserved by deferential courts and a cowed Congress alike. In Australia, decisions to go to war are vested in the Queen and exercisable by the Governor-General, acting on the advice of the government of the day. (25) Recent deployments of troops abroad have not been preceded by parliamentary approval--for instance, the Australian deployments in Iraq and East Timor. In the UK, this executive privilege and dominance is under threat from two, rather obvious, sources: Parliament and the courts. One of the principal grievances directed towards the Blair Government was its centralising tendency. The Iraq War, already unpopular among a significant segment of the British citizenry, then became a lightning rod for opposition to presidential Blairism. The result of this was a shift in parliamentary mood, reflected in the headstone at Robin Cook's grave: 'I may not have succeeded in halting the war, but I did secure the right of Parliament to decide on war'. (26) Cook, one time Foreign Secretary and later Leader of the House of Commons, did secure a vote on the Iraq War two days before it began (the Government won the vote, in favour of war, 412 to 149) but it is premature to say whether this has become a convention of any sort. (27)
My focus, though, is on the courts, the locus...
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