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WHATEVER MORAL AND political questions are left hanging after the inquiry, individual soldiers connected to the killing of Baha Mousa are unlikely to escape its consequences. The affair has dragged on for years and for some it hasn’t finished yet. Their lives may have continued along normal paths, but escape has been difficult. Sir William Gage spared few in his designation of individual responsibility, although his criticism was limited to members of 1QLR, thus neatly corralling the moral contagion. How deep did his condemnations cut?

COLONEL MENDONÇA MAY HAVE THOUGHT THAT HIS troubles were over when he strode out of the court martial, exonerated in his and many others’ eyes. But soon after the trial collapsed the army and the Ministry of Defence decided to resurrect the matter. An internal inquiry was ordered to look into the way in which 1QLR had been commanded. Mendonça remained under suspicion, liable to ‘administrative punishment’ as it was sweetly named. The news shattered any exhilaration Mendonça felt when the charges against him were dismissed. The thick cloak of suspicion was settling again around his army career. He resigned his commission and turned to the press to tell his story. The Daily Mail ran a sequence of articles in June 2007 reporting on the sense of betrayal and condemning the political interference in his case. They published photographs of Mendonça and his wife, posing as though for a fashion shoot, but with joyless faces. The quotes were replete with virtue: ‘courage’, ‘honour’, ‘empathy’, ‘love’. It was a picture of an exemplary man and loyal family. But despite the incipient anger, it was the end of his devotion to the army. He couldn’t escape the doubts over his integrity.

After leaving the forces Mendonça was (and appears still to be) promoted on the circuit of motivational speakers, advertising his abilities to galvanise men to work to the optimum. There is no shyness in referring to his appearance before a court martial. It’s held out almost as a badge of honour; the dismissal of the case against him lauded as a vindication of his value. More recently he’s turned to commercial management, acting as project director for Network Rail, assisting in delivering the new Crossrail line from Paddington to Maidenhead. A sedate employment. The absence of the excitement he experienced in Basra must be profound.

When Mendonça appeared before the inquiry he presented himself with unsurprising confidence. For Sir William Gage he was an impressive witness. No blame was directed at him for the infliction of particular violence. But he was condemned for a sequence of failures: he ought to have recognised the serious risk of inhuman treatment which hooding and stress positions in very high temperatures would have posed; he ought to have applied his mind to the whole matter of prisoner handling more acutely; he ought to have known what was happening in that detention block; he ought to have visited the detainees, discovered why they were still being held despite the rule that they should be transferred to Camp Bucca within fourteen hours of their arrest; and when he found out about Baha Mousa’s death, he ought to have checked on the state of the remaining detainees. He was the commanding officer and his responsibilities couldn’t be so easily delegated when it came to the welfare of those in his charge. Gage’s findings were in direct conflict with the decision of the court martial. But Mendonça remains unpunished in law.

MAJOR CHRISTOPHER SÜSS-FRANCKSEN, Mendonça’s second in command and the man who entered the detention centre with Major Seeds not long after Baha Mousa had died but who claimed he saw nothing particularly disturbing, became a manager at a Hewlett-Packard-related company in Reading. At the inquiry he said that he didn’t think the detainees were obviously in serious distress when he visited the detention block. Gage didn’t believe him. Süss-Francksen failed to discharge his duty that night, Gage found. He should have ensured those clearly suffering received medical attention and their welfare was maintained whilst they were imprisoned at Battle Group Main. Süss-Francksen has never answered for these failures.

MAJOR MICHAEL PEEBLES, THE MAN RESPONSIBLE FOR the system of prisoner handling and interrogation, did not resign his commission after Iraq. He remained in the services and became a member of the Intelligence Corps, taking up a post in Afghanistan. Perhaps more than any other officer he was subjected to sustained critique by Gage. He found that Peebles ought to have known that the detainees were endangered by the system of conditioning he oversaw. It was an unacceptable failure. Peebles must also have known that the detainees were being subjected to serious assaults. That placed a heavy responsibility for all that occurred on Peebles’ shoulders. His was a failure of duty that persisted throughout the period when the detainees were held at Battle Group Main, Gage determined. Again this contradicted the verdict of the court martial. Shortly after the Gage Report was delivered to Parliament, it was reported that Major Peebles had been suspended. But he remains unpunished.

THE OFFICER IN COMMAND OF A COMPANY, Major Robert Englefield is also still in the armed forces. He has been promoted to lieutenant colonel. At the time, he was the man in charge of Lieutenant Rodgers and his multiple. He visited the detention block on at least a couple of occasions, although denied entering the building. He saw and heard nothing, or so he claimed. Gage called him an ‘unsatisfactory witness’. But there was no evidence to prove that Englefield knew of the detainees’ distress and Gage believed he could not be criticised for failing to look to their welfare, given that this was clearly the responsibility of Major Peebles. That doesn’t mean he acted well in this affair.

MAJOR MARK MOUTARDE WAS THE ADJUTANT FOR 1QLR. He couldn’t remember whether he visited the detention block after he heard that a detainee had died. At the inquiry he conceded that it was highly likely he had gone there. If he had, and Sir William Gage found that he probably did, then he had a duty to investigate the state of the detainees and ensure their welfare was preserved from that moment. He did neither. Mark Moutarde’s Facebook entry has listed Don Payne, Jorge Mendonça and Craig Slicker all as ‘friends’. It means little perhaps, except that the links forged through service in distant wars are unlikely to be broken by scandal.

LIEUTENANT CRAIG RODGERS HAS ALSO LEFT THE army. He has been pursued by the BBC TV programme Panorama but has stayed out of view on the whole, moving to Spain. He might have considered himself extremely fortunate not to have been prosecuted at the court martial along with Colonel Mendonça and the others. His command of the multiple at the centre of the arrest and guard of the detainees placed him close to all the abuse that was suffered. He has claimed, though, that he never saw anything untoward happening on the Sunday evening, on the Monday or even on the Tuesday morning. Gage found this unbelievable. He found that Rodgers knew much of what was happening, as it was happening. He found that he failed to report what was taking place, failed to intervene, and failed to exercise any proper control over his men. Gage said he had to accept serious responsibility for the ill-discipline. Rodgers has never answered for these failures.

FATHER PETER MADDEN LEFT THE ARMY AND has returned to work as a Catholic parish priest. He served the parish of St Mary’s in Wednesbury and then moved to St Mary Immaculate in Warwick. He doesn’t like to speak about the Baha Mousa affair. He’s out of the army now, he says, as though a line of moral responsibility has been drawn for him.¹ Gage hasn’t allowed that comfortable position to linger. He found Madden to be a ‘poor witness’ despite the fact that he had given his evidence under oath. He found that he must have seen the shocking conditions of the detainees during his visit. He found that Madden should have intervened or reported the matter to those in command. He ‘did not have the courage to do either’, Gage said. Newspaper reports stated that the priest would be spoken to by his archbishop. Whether he answers for his lack of virtue might be a matter for conscience rather than law.

THE HIPPOCRATIC OATH MAY BE AN ANCIENT, and some might say outdated, ethical framework for modern day physicians. But its call for doctors to keep their charges safe from harm and injustice remains as directly relevant as ever. Derek Keilloh left the army as a major. He became a GP in Northallerton. His status as the senior medical officer in 1QLR placed him in a peculiar position as soon as he became aware that there were detainees in Battle Group Main on Sunday 14 September 2003. He may not have known of the extent of their hooding and conditioning or the abuse they were receiving in the detention block. For Gage, he knew that the detention block was a squalid confinement which warranted careful medical concern. That procedures for looking after the health needs of all detainees were inadequate had to be partly (but not only) the fault of Keilloh. His inability to introduce a system that protected those under his charge, if only temporarily, was lamentable.

More profoundly disturbing was his refusal to admit that he saw any injury to Baha Mousa during or immediately after his attempts at resuscitation that would have alerted him to unjust harm having been committed. Other medics in that aid post saw the wounds. He said he did not. Nor did he see the injuries to the two other detainees who presented to him soon after the death. He prescribed minor pain relief and anti-inflammatory drugs as though that would suffice. It was a horrendous dereliction of his army duty and his duties as a doctor.

His failure didn’t end there. Gage believed that Keilloh should have visited the detention facility to check on the health of the prisoners even before Baha Mousa’s death. He knew they were there and could have guessed at the conditions. Immediately after the failed resuscitation he should have made ‘the short walk from the RAP’, as Gage noted with stiletto acuity, to see for himself how the remaining detainees were faring. And he should have reported the injuries he must have seen to those higher up the command chain. He had the opportunity. He had good cause. Keilloh was brought before the Medical Practitioners Tribunal Service in 2012 to answer charges related to his actions at Battle Group Main. He was found guilty of misleading and dishonest conduct and struck off the medical register.

THESE MEN WERE THE OFFICERS CRITICISED BY Sir William Gage. A couple of others, WO Mark Davies and Sergeant Smulski, were the tactical questioners on duty at Battle Group Main. Gage found that Smulski was ‘singularly unprepared’ for this task. Both men ordered forms of abuse: Davies by making the eighteen-year-old boy kneel close to the generator pumping out hot air into his face; Smulski by walking into the detention centre and reinforcing the harsh conditioning, including the use of the metal bar to keep the detainees awake throughout that first night. They knew what was happening and did nothing to prevent it. If anything, they gave the treatment an official air. They were the questioners from Brigade, the men who were supposed to know what was allowed and how far the guard could go. They may not have been aware of the kicking and punching but the rest of the abuse was fine by them. They believed that was what their training demanded.

Of course, all these men were not the ones positively identified as assaulting the detainees. Eighteen lower-ranked soldiers were listed as causing actual harm. Their names are familiar.² They appeared at the court martial. Whether they will ever answer for their willingness to attack the detainees, to watch and follow others, remains to be decided.

There is one more culprit to mention: the man Gage described as bearing a very heavy responsibility for the events in the detention facility which he oversaw. He was a bully, feared by the junior soldiers. He perpetrated much of the violence done to the detainees. He set the example for the others to follow. He initiated conditioning and maintained it with violence, instructing others to do the same. That violence was gratuitous, sustained and malicious. The choir was his invention, its repetition the act of a man who enjoyed inflicting pain. And at the end, his assault on Baha Mousa was intense and uncontrolled. It was a contributory cause to the death. There was nothing accidental about it.

That Donald Payne escaped conviction for manslaughter was probably more a matter of his lawyers’ collective skill than the justness of his defence. He lied about his actions then and although he revealed much more before the inquiry, he was the primary perpetrator in Baha Mousa’s death. After all that was learned at the inquiry, all the evidence of the multiple assaults, the choir, the enforced harsh conditions, the final uncompromising attack, a charge of murder or manslaughter no longer seems as ridiculous as the court martial concluded.

But is Donald Payne a scapegoat? Perhaps a distinction must be made. For all the ills and all the contempt evident across 1QLR and the army and the government in its conceited invasion and occupation of Iraq and treatment of that country’s inhabitants, of course he is. For Baha Mousa’s death, no.

¹ I spoke to Father Peter Madden by telephone on Thursday 16 June 2011 but he said he wasn’t interested in speaking about the Baha Mousa matter. He said, ‘I’m out of the army now.’ He refused to say anything more.

² The eighteen are: Private Allibone; Private Appleby; Private Aspinall; Private Bentham; Private Cooper; LCpl Crowcroft; Corporal Douglas; Kingsman Fallon; LCpl Graham; Private Lee; CSgt Livesey; Private MacKenzie; Private Reader; LCpl Redfearn; SSgt Roberts; Private Slicker; Sergeant Stacey; and Private Stirland.