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THE PRESSURE TO go after a senior officer became acute in February 2005. It was then that the Camp Breadbasket trial took place. Those soldiers who had been photographed with an Iraqi tied to a fork-lift truck and who had forced prisoners into simulated sex acts appeared before a court martial in a British base in Osnabrück, Germany. Lance Corporal Mark Cooley, Corporal Daniel Kenyon and Lance Corporal Darren Larkin were accused of a host of crimes. Cooley was charged with ‘disgraceful conduct of a cruel kind’ for being pictured driving the fork-lift truck with an Iraqi tied to the front prongs. He was also accused of simulating a punch seen in another photograph. Kenyon, the most senior soldier of the three, was accused of failing to report what had happened and aiding and abetting others in assaulting the prisoners. Larkin had been pictured standing on the prone body of one of the Iraqis held at the camp, an action which incurred a charge of assault. A fourth defendant, Gary Bartlam, the soldier who had taken the trophy photographs, had struck a deal. He had pleaded guilty to a number of charges and was dishonourably discharged from the army as well as sentenced to eighteen months in a youth detention centre before the other defendants even reached court.

The photographs couldn’t have been more damning. It was impossible to give an innocent explanation for them, although LCpl Cooley tried. He’d argued that he was only moving the prisoner out of the sun. He wasn’t believed. But the soldiers’ general defence held significantly more weight. All four argued that they were given orders to act like this. It was claimed in court that a Major Dan Taylor, the officer in charge of the camp, had become fed up with looters entering the base and stealing supplies. The accused alleged that they had been given orders by Major Taylor that anyone captured inside the base should be ‘worked hard’ to deter them from coming back. It was part of Operation Ali Baba, as it was called. They took their instructions at face value, using their imagination to decide what would be appropriate. No doubt Major Taylor would have challenged their interpretation, but even the order he allegedly gave would have been against the rules of war. Prisoners shouldn’t be ‘worked hard’ as some form of retribution. Despite this, Major Taylor wasn’t standing accused. Why not? ‘Shit rolling downhill’ the squaddies of A Company would have said.

The claim was given some credence when General Sir Michael Jackson, head of the army, announced after the trial that Major Taylor might be subject to some kind of internal disciplinary process. However, the key charge levelled at the Army Prosecuting Authority that the junior soldiers brought to court martial had been made scapegoats with more senior officers escaping criminal sanction remained credible. Rumours began to surface that government officials weren’t too happy at such selective prosecution and were unimpressed by the apparent lack of rigour in the army’s prosecution of its own. It all looked a little too cosy. Kicking a few young squaddies out of the forces had the appearance of tokenism.

General Jackson appeared sensitive to the critique. His apologetic statement released after the Camp Breadbasket affair had mentioned that he was appointing a senior experienced officer to track other prosecutions and make recommendations for action. It was an acknowledgement of failure, but it didn’t go as far as it could have done. The case against the Camp Breadbasket soldiers had suffered from a lack of evidence. None of those victims pictured in the photographs was brought to testify. The APA said they couldn’t be found. But three of the men had been in contact with Phil Shiner’s firm and given initial statements about their treatment. Shiner passed the information on to the Attorney General and the APA. He was told to leave it at that and say nothing. Meanwhile, the day after the trial ended, the Independent on Sunday published a story that despite the RMP’s assertions that they couldn’t locate the victims of Camp Breadbasket, the paper had found them with ease. And the victims’ accounts of what had happened to them were far worse than even those related at the court martial in Osnabrück. As in the Baha Mousa case, there were allegations of beatings and humiliation. They seemed to confirm the ‘work them hard’ order had been applied with enthusiasm.

It all pointed to a deeper culture of abuse than General Jackson would admit and an army police force which failed at the most basic level of evidence collection. The Attorney General was reported as looking for reform in the way the army prosecuted crimes. Whether he also called for a change in approach to be reflected in the ongoing Baha Mousa case is unclear. Was it coincidence that Colonel Mendonça now became a target for the APA?

Brigadier Robert Aitken, the officer appointed by General Jackson after the Camp Breadbasket trial to look into the conduct of prosecutions, reportedly wrote to battalion commanders who had served in Iraq. According to the Daily Telegraph, his letter said the ‘military discipline system’ was receiving ‘a bit of a hammering’. It asked ‘whether our officers behaved to the highest standards’. And it requested ‘evidence of officer behaviour in Iraq which I could use.’ It wasn’t clear what this use meant, but the underlying intent was sharp enough.

Colonel Mendonça was one of those sent the letter. He replied positively about those who had been under his command. He stressed the uniquely dangerous, even harrowing, circumstances of the battalion’s time in Basra. The immense restraint his men showed and the discipline they maintained did credit to them all. And he added his own political spice: he told the brigadier that his officers were hampered by the need to make good the ‘Coalition’s complete failure to plan for the aftermath of the war’. He wasn’t about to criticise any of his men in these circumstances. He didn’t believe he had good cause to do so.

Whether there was any political pressure that followed this correspondence or not, the APA team began to think how they could connect Mendonça with some identifiable crime. In the absence of any direct evidence placing him in the detention facility whilst the detainees were suffering abuse, they had to consider neglect of duty. But what was that duty and how had he been negligent?

The legal experts set about building a case on a simple assumption: the commanding officer of an army unit should always take responsibility for everything that happened under his command. If one took that principle to extremes, then no matter what crime had been committed, almost regardless of context and circumstance, a battalion commander would have to answer for the conduct of his men. This was stretching plausibility too far. In Mendonça’s case, though, the fact that he was sleeping and working within a hundred metres of the detention facility where Baha Mousa died, where all that screaming and shouting occurred, where detainees were taken across the compound for interrogation over a period of forty-eight hours, placed him right on top of the scene. He was close enough to touch it, to smell it, to hear it. It brought culpability that much closer to Mendonça’s door.

In June 2005, as the festering political tension induced by all those stories of army misconduct continued, the SIB sought the opinion of a specialist. Brigadier Robert Scott-Bowden, director of infantry, was asked to sum up the responsibilities of a battalion CO. He said they incorporated the ‘training and safety, security, discipline and education, welfare, morale and general efficiency of the troops under his command’. Although he said he would expect the CO to delegate prisoner handling, all responsibility could not be avoided. He had to ensure those given the job of running a detention facility, for instance, were well aware of their legal duties. That included observing the laws of war. The brigadier said the CO must put in place ‘an organization that is adequately trained and sufficiently resourced’. These obligations couldn’t be shifted wholly to junior officers.

This was enough. The APA had sufficient cause to pursue Colonel Mendonça, or so they believed. A charge was drawn up: negligent performance of his duty by failing to take such steps as were reasonable in all the circumstances to ensure that Iraqi civilians being held at the temporary holding centre under his command were not ill-treated.