The Baha Mousa Public Inquiry

Day 3: Wednesday 15th July 2009

Mr Elias continued his opening submissions regarding Module 1 and the historical use of conditioning techniques.

Opening Statement by Counsel to the Inquiry Mr Gerard Elias QC continued.

Mr Elias now considered the new Directive being drafted following the Heath Ruling in 1972.  This needed to give interrogation guidelines to the military (whilst acknowledging that interrogation is primarily the remit of civil authorities), based on UK police practice that it had to be lawful and still obtain the level of information required.   The difference in priorities between the police (obtaining convictions) and the military (obtaining information) interrogations was an issue. It was to cover all armed forces in all circumstances all over the world (excluding international conflict).

The MOD wanted the directive to include counter-insurgency operations whilst others preferred confinement to internal security operations.  It was felt that the new restrictions could be damaging.  It was agreed that it could be made public that it was absolutely necessary.  There was debate also over to whom it applied.  Foreign and Commonwealth Office (FCO) and Northern Ireland Office (NIO) instructions should match the new directive which is specifically for the military. The final draft (JIC (72)) was widely circulated throughout government in May 1972.  

The use of army personnel in interrogations in internal security operations was to be exceptional and required ministerial authorisation.  The methods used must conform to domestic and international law and no forms of coercion were to be used. The 5 techniques were prohibited.  There would be mandatory medical examinations of detainees upon arrival and departure and all ill-treatment was to be reported.  Part I of JIC (72) (Joint Intelligence Cell) has never been removed or replaced as confirmed by Right Honourable Adam Ingram MP Armed Forces Minister in June 2004 to the Parliamentary Joint Committee on Human Rights.

Much of JIC (72) related to interrogation centres.  Baha Mousa was held in Battle Group Main (BG Main) which was not an interrogation centre.  There had been no distinction between blindfolds and hoods.  Mr Elias questioned whether the Directive called for a complete prohibition of hoods and blindfolds in all internal security operations or merely bans them being used in interrogation processes.

Part II of JIC (72) was purely domestic and concerned the MOD responsibilities and was not to be published under any circumstances.   An MOD letter was shown indicating that it covered all of the armed forces and was not confined to Northern Ireland.  JIC (72) Part II was cancelled in July 1997.

Mr Elias then moved on to consider the interrogation of Prisoners of War (POWs).

The army doctrine on the handling and treatment of detainees in war time pre-1972 applied to the Geneva Conventions.  The premise was that POWs would be treated in a similar was as a British soldier in close arrest.  The 1955 Joint Service pamphlet on Interrogation in War was now considered outdated.  The 1971 Manual of Service Intelligence in line with the NATO Standardisation Agreement (STANAG) of the same year but neither was explicit on the treatment of detainees.  The intention was to adopt NATO guidelines rather than creating a set of distinct rules for the UK.

Mr Elias stated that all the documents combined left recipients in no doubt as to the importance of treating prisoners humanely.  However, nowhere in JSP (391) was there express prohibition of the 5 techniques or guidance on their use as advocated by Parker and contained in JIC (72).

A 1996 MOD letter was shown confirming that the five techniques were illegal and in contravention of both the European and Geneva Conventions and should not be used in interrogations.  A ministerial submission flowed from this in 1997 with significant recommendations on interrogation-related training.  A detailed directive for interrogation appeared not to have been produced.  If this was the case, Mr Elias asked the Inquiry to investigate who was responsible for this omission.

Correspondence between JSIO and Army Legal displayed from 1999 discussed the legal status of interrogation in situations other than general war.  It appeared that no Army doctrinal guidance existed.  Mr Elias continued to evidence the lack of trained prison handling and tactical questioning trained personnel.

A Deputy Chief of the Defence Staff memorandum on the eve of the Iraq war states “all interrogation will be conducted in accordance with JWP1-10, prisoner of war handling and the Geneva Convention”.  It goes on to express concern about the lack of interrogation doctrine or training and the readiness of those who are to undertake the task.

Mr Elias outlined why it was important to examine PoW doctrines even though Baha Mousa and the other detainees where clearly not PoWs.  He believed that even though 1QLR were dealing with insurgents the PoW doctrine was still guiding them.  Having considered the changes to orders and doctrine since the Heath statement up until March 2003, Mr Elias moved on to address the significant provisions, orders and guidance in place and operative prior to specific Op-Telic orders.

Mr Elias began with an overview of the relevant Geneva Convention Articles before considering the NATO doctrine at the time of Op-Telic, AJP-2.5, and finally Joint Warfare Publication (JWP) 1-10.  JWP 1-10 is one of the documents which subsequent orders referred to as providing guidance on how PoWs should be treated.  Yet it contained no express reference to the prohibition of the use of the 5 techniques.  It did however provide that prisoners should be treated humanely, not physically or mentally threatened, and given food and water.

The May 2006 version of JWP 1-10 was then contrasted with the 2001 version. There was now specific guidance on the prohibition of the five techniques, and what acts were actually permitted.