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WHEN THE INVASION of Iraq began in March 2003 and then ended soon after with dramatic haste, Phil Shiner began to hear rumours from Iraq about possible unlawful killings by British troops. The scandals were already surfacing from the mire of Basra even before the Baha Mousa incident. Stories about ill-treatment at British bases appeared from some of the news agencies. Most prominent was the Camp Breadbasket affair, which came to light in peculiar circumstances.

On 28 May 2003 a soldier from the Royal Regiment of Fusiliers took a roll of film to a photographic developing shop in Tamworth, Staffordshire. He had just returned from Iraq and, with a returning holidaymaker’s eagerness, wanted to see his photos as soon as possible. The shop assistant who developed them that day was repelled by what she saw. She called the police. The photographs didn’t depict desert scenes or the streets of Basra, memories of an exotic army excursion. They were portraits of naked Iraqis, some forced to pose as if having oral or anal sex with each other, others trussed up in netting with guns to their heads, yet more with soldiers posing as though about to club them. One Iraqi was shown tied to the forks of a fork-lift truck suspended several feet into the air, clearly terrified. Many of the pictures had grinning British troops in the background.

What the soldier who wanted these photos developed had been thinking is hard to figure. Did he imagine that they wouldn’t be seen? Didn’t he care? Did he believe they were innocent snaps, trophies which anyone would find funny?

The story broke on the BBC. The photos were published to uproar. Defence chiefs were ‘appalled’. The soldiers responsible, bad apples who had lost control, the military said, would be court-martialled; the army would ensure that this behaviour was stamped out; there would be a swift investigation and prosecutions would follow, or so the media were promised by generals and politicians.

For some old hacks in Fleet Street, the photographs might have aggravated a distant memory. This wasn’t the first time that British soldiers fighting in a grubby war against a demonised enemy had snapped trophy pictures. Back in the early 1950s, in the Malayan Emergency campaign, there had been a similar scandal. The Daily Worker, forerunner of the Morning Star, an integral part of the British Communist Party, published a sequence of pictures depicting a grinning British Royal Marine holding up the severed heads of communist guerrillas to the camera. There was a mild outcry then, and many claimed the photographs had to be fakes. An investigation found that they were genuine. The army command admitted it was standard procedure: they needed to ensure proper identification of all those killed in jungle skirmishes, it was claimed. Troops were instructed to bring back the heads of the dead if it was impracticable to return with the bodies. It was macabre, indefensible, but it was officially sanctioned. Few protested strongly, though. The matter barely registered in the House of Commons. A few questions were the extent of the uproar. The Secretary of State for the Colonies, Mr Oliver Lyttelton, confirmed that the practice of decapitation would be ceased. No disciplinary action was taken against the marine. He hadn’t actually decapitated the guerrilla fighters (that had been done by an employed native tracker from Borneo) and there were no orders at the time banning decapitation. Did that exonerate all concerned? Apparently so.

Fifty years on, The Times ran the story of Camp Breadbasket not as an isolated incident but as another example of the British Army’s collapsing reputation for professionalism and respect. It reported concerns expressed by Amnesty International about the treatment of prisoners. It repeated accusations that had been made that the British encouragement of the people of Basra to loot Saddam Hussein’s Ba’ath Party buildings was contrary to the laws of war. It noted that there were investigations into the behaviour of Colonel Tim Collins (later disproved), that he had pistol-whipped an Iraqi prisoner and staged a mock execution. The litany of allegations made for a tableau of abuse and lack of regard for the Geneva Conventions.

Less than four months later, in the autumn of 2003, the first reports of Baha Mousa’s death in custody appeared.

Amidst all these stories, Phil Shiner recognised that the warning letter delivered before the war even began was now being tested. If there was evidence that British troops were paying little attention to the laws of war, how many other incidents of abuse were there, incidents which never made it to the newspapers? And where in the government and army responses was there an acknowledgement that maybe the whole system was flawed, that the preparations for war and the administration of the occupation ignored the humanity of the people of Iraq? Perhaps the ‘bad apple’ theory was simply not credible. In which case, how would the system be brought to account?

Shiner wanted to travel to Iraq in early 2004 to see for himself whether there were cases which were not being represented. But he was prevented from obtaining a visa. Iraq was too dangerous. Instead he instructed an Iraqi citizen to whom he had been introduced to travel to Iraq and act as his representative. If anyone had a complaint about their treatment at the hands of British forces then he could take their instructions on Shiner’s behalf. It wasn’t a matter of seeking compensation. Shiner wasn’t involved in that type of litigation. That wasn’t his speciality. He was a public law expert, bringing judicial review proceedings against public authorities in order to change their practices, to highlight wrongdoing. This was standard in public law: actions brought to challenge decisions on a matter of principle. Sometimes, it was referred to as ‘public interest litigation’. The individual brings the action not only to have their particular case reviewed by a court but also to set a precedent for others. A favourable judgment can alter the whole legal landscape, changing the behaviour and policies of local and central government and all those authorities purportedly operating for the benefit of all.

The Baha Mousa case would have been no different as far as Shiner was concerned. The clear injustice of Mousa’s killing and the ill-treatment he and the other detainees received deserved a full and proper investigation.

Wasn’t the RMP already doing this? Not according to Daoud Mousa.