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WOULD IT BE an exaggeration to claim that if Phil Shiner and his team of lawyers hadn’t brought the action for judicial review of the investigation into Baha Mousa’s death, the whole affair would have evaporated for lack of institutional interest and firm evidence? Would the army have sorted the mess out by itself, preserving its reputation for professionalism and leaving the vast majority of its troops untainted? Would the government have attempted to look deeper into the corrosion of values the affair suggested? It’s doubtful.

The SIB’s investigation was sluggish at the beginning of 2004. There were delays in completing witness statements, in obtaining identification of the accused, in bringing charges, in instigating proceedings. The very fact that the case eventually took three years to come before a court martial points to a certain laxity in prosecution. But it’s hard to prove. It can only be speculation that the commencement of the High Court action by Shiner forced the government, the Ministry of Defence, the army and the Royal Military Police to take the case of the abuse of the detainees at Battle Group Main seriously. But the ‘coincidence’ of his litigation and an official seriousness applied to the case indicates some connection.

How, then, did Phil Shiner come to assume such a pivotal role?

Before the Iraq War, Shiner was deeply involved in the peace movement. He acted for the anti-nuclear weapons lobby and environmentalist campaigners. Law was a means to an end, a tool, sometimes to protect activists who chained themselves to the fences outside the nuclear weapons experimentation centre at Aldermaston, sometimes to spearhead outrage at government practices, sometimes to bring attention to a particular injustice.

When Tony Blair’s administration threatened Iraq in the aftermath of the 9/11 attacks in the USA, few people in the peace movement doubted that some kind of conflict would take place. It was obvious from the beginning of 2002. Opposition to war quickly focused on the legality of any action against Saddam Hussein’s regime. It wasn’t that Saddam deserved protection. For years it was only human rights and peace activists who protested against atrocities in Iraq. But war as a means of punishment for something that the Iraqi people had had nothing to do with was abhorrent. There were better ways, they argued. It would be the civilians, the ones who had nothing to do with any weapons of mass destruction programme, which Saddam might or might not have had, who would suffer most. If any action was to be taken then it had to be lawfully approved by the United Nations, not a whim on the part of the US and its allies. That was the thrust of resistance.

During the latter half of 2002 the legal dimension began to assume increasing importance in the opposition to war. It was a rallying call. The argument came down to a simple formula: unless there was UN Security Council approval, invasion would be illegal, against international law. Everyone suddenly became an expert in this arcane subject, able to protest with this as the banner headline. Philip Allott, an eminent Cambridge University professor and an expert in international law, expressed bemusement because a taxi driver began to pronounce to him on the intricacies of legal process at the UN. You needed a UN Security Council resolution, the driver no doubt told the professor. The US couldn’t just strike. It was wrong for Blair to say that this was self-defence. That was a distortion of decades of established doctrine. Everyone knew this now. Not just secluded academics.

Unlike the rest of the critical population, Phil Shiner wouldn’t then claim expertise in international law. That didn’t matter. The law could be learned. What did matter was how the legal process might have a role to play. It might allow for a challenge to what seemed to be an inexorable drift to war. Could law intervene to stop what everyone, from professor to taxi driver, was saying was illegal? That would make sense: using the law to enforce the law.

Of course, the system is never quite open to simple equations like this. As part of the peace movement, Shiner spoke with activists at the Campaign for Nuclear Disarmament in the summer of 2002 to explore how the law might have a role. CND had been a prominent organisation during the 1970s and 1980s, their protests set against the backdrop of the Cold War when the threat of oblivion seemed very real. After the Berlin Wall was taken down and Russia emerged as a putative western ally, their purpose diminished. They became a moribund organisation, barely registering with the public. Its long-serving members didn’t disappear, though. Their credentials as peace activists were unchanged and when it became clear that war against Iraq was inevitable they sought to intervene. They instructed Shiner to bring an action in the High Court, a judicial review of the government’s intention to go to war without a UN Security Council resolution. Predictably the case failed. The judges decided that this was one of those areas where the courts had no right to intervene. They had no power to require the government to take any particular action where foreign policy and military action were concerned.

Even though the case didn’t succeed, the legal arguments against war remained. However, their centre of gravity in Britain shifted. The only court which could say the invasion was illegal now was the International Court of Justice, and that institution would never hear a case in time. Actions there could only be brought by another state and even then it would take years before the court would get round to listening to arguments and making a decision. For opponents to war this wasn’t an option. But there were other pressure points.

Shiner and his colleagues began to think less about the legality of the war and instead considered how war would be fought. What would happen if British forces breached the laws of war? This was no longer an academic issue. In October 2001 the Blair government had ratified the International Criminal Court statute. Any war crimes or crimes against humanity or genocide committed by British forces could now be subject to investigation and prosecution by the International Criminal Court. It was a momentous change to the law. The chief prosecutor of the ICC had the power to investigate any serious international crime. Indictments of military and political leaders could follow. This was the first time that British troops would go to war with such an international body able to scrutinise their every action. It was the first time that generals and ministers could be held to account, at least in theory. And it was a theory that Shiner sought to test. If all those politicians and senior armed forces officers were put on notice that their actions might attract personal liability then maybe, just maybe, they might think again about embarking on war.

Bizarrely, it was a comedian who brought the threat of ICC scrutiny to greater public attention. Mark Thomas had already established a solid reputation as a radical stand-up comic. He was of that generation who had made a living out of protesting against the Thatcher government. The 1980s and 1990s had honed his art. By the beginning of 2003 when the issue of weapons of mass destruction was the inspiration for military action (or so it was claimed in London and Washington) Thomas produced a programme warning the British government about its responsibilities. He brought in Phil Shiner as his ‘brief’ and together they made an impromptu visit, on camera, to Downing Street to serve a letter on the prime minister. Although the intention was to introduce a note of ironic comedy, the letter was a serious legal threat. It notified the government that any breach of the laws of war (through indiscriminate bombing, sequester of oil assets, or treatment of prisoners along the lines established at Guantanamo Bay) would be followed by a reference to the ICC prosecutor. A legal ‘shot across the bows’.

Mark Thomas’ programme may not have altered government thinking or military planning, but the warning letter put the Ministry of Defence on notice. It was enough to frighten members of the general staff too. The most senior officers in charge of the invasion ordered that lawyers, members of the legal corps, be at the front line. They would make sure the laws of war were respected. It was the troops’ insurance policy.

The letter also placed Shiner at the forefront of legal responses to the war.