Sir David Davis and Dan Jarvis MP write on how blocking torture investigations will damage the army’s standing

As published in the Times:

On September 14 2003, Baha Mousa, a hotel receptionist, was dragged from his desk, handcuffed and taken to a detention facility in Basra along with six other Iraqi men by British soldiers.

While detained, the seven men were allegedly hooded, beaten, and deprived of food, water and sleep. The soldiers forced them into stress positions with heavy sandbags on their heads and beat them if they dared to move.

The following day, Baha broke free and a struggle ensued between him and two of the soldiers. At the end of the struggle Baha was dead and had suffered 93 separate injuries.

Only one of the soldiers was successfully convicted. Corporal Donald Payne admitted to inhumane treatment and became the first British solider to be convicted for a war crime. He was sentenced to only one year in prison.

The judge in this case was clear why he believed more convictions were not secured — “simply because there is no evidence against them as a result of a more or less obvious closing of ranks”.

Baha Mousa’s case demonstrates just how difficult it can be to secure a conviction for such treatment.

While such shameful behaviour by our troops is rare, there are further allegations that have been made against our soldiers in Iraq and Afghanistan, including severe beatings and forced sexual acts. In the last year, new allegations have been made concerning alleged war crimes in Iraq and Afghanistan, based on old information, that had simply been ignored.

Despite a dark recent past, the UK has a proud history of taking a stand against torture, including helping to establish the Geneva Conventions in the aftermath of the Second World War. That is why we are troubled by the government’s intention to prevent acts of torture being prosecuted if they took place more than five years ago.

The “triple lock” in the bill would make it virtually impossible to prosecute acts of torture even where there was extensive evidence such acts took place. This would do grave damage to our armed forces’ standing and effectiveness.

Torture is anathema to the brave men and women who serve our country. Ministry of Defence doctrine makes clear that “there are no circumstances in which torture, cruel, inhuman or degrading treatment can ever be justified”. It has also been illegal in the UK for at least 300 years and was expressly designated as a domestic offence in the Criminal Justice Act 1988.

The five-year limit in the bill does not merely cover acts carried out in the heat of battle, where soldiers must make split-second life or death choices. It would also apply to the worst kinds of abuse we saw alleged during the “war on terror”.

Our own efforts to reveal UK involvement in torture during this period have shown cases may not be fully uncovered for many years.

Indeed, we are currently working together, across the political divide, to fight the government in court to ensure they deliver the long-promised judge-led inquiry into acknowledged abuses from nearly two decades ago.

The defence minister, Johnny Mercer, has said the bill will end the vexatious claims against serving and former military personnel. The bill does nothing of the sort, and the joint committee on human rights rightly noted this week that it in fact does “nothing to address the issue of repeated investigations”.

Take the case of Major Robert Campbell. Major Campbell has been investigated eight times over allegations that he was responsible for the drowning of an Iraqi teenager in May 2003 despite it being repeatedly found there was insufficient evidence to prove Major Campbell’s guilt.

No soldier should ever have to go through this. A review by the Iraq Historical Allegations Team in 2013 found a litany of errors in the original investigation carried out by the Royal Military Police, including failures to interview witnesses, locate crucial radio logs and properly look into abrasion injuries on the victim’s back.

Major Campbell’s ordeal was not a failure of the law to protect him. It was a failure of the investigative process to settle the matter conclusively.

In a recent letter to Downing Street, senior military and security figures warned the bill, “would increase the danger to British soldiers if Britain is perceived as reluctant to act in accordance with long-established international law”.

They are absolutely right. They know that as a question of military tactics, torture simply does not work — people in excruciating pain will tell their torturers exactly what they want to hear just to make them stop.

The government has rightly committed to end the cycle of vexatious prosecutions but this bill fails on its own terms.

From Baha Mousa to Major Campbell, history shows us that our system is broken. Genuine perpetrators of inhumane treatment get off lightly, while innocent soldiers are dragged though endless and poorly run investigations.

The bill does not address either. All it does is place in real doubt the UK’s unequivocal prohibition and abhorrence of torture. That cannot be right.

For that reason, we urge members of parliament, from all parties, to support our amendment and exclude acts of torture from the legislation.