Belfast Telegraph

Saturday 19 April 2014

Could the probe into Baha Mousa's death be key to a Haass deal?

Iraqi civilian Baha Mousa with his wife and two children. His death at the hands of British soldiers while in custody sparked an inquiry at which those soldiers who gave evidence were granted immunity from disciplinary action

A long-running inquiry into the death of an Iraqi civilian, Baha Mousa, could provide the most likely model for a deal from the Haass talks.

Baha Mousa was a 26-year-old hotel receptionist. He was arrested on September 14, 2003 by members of the 1st Battalion The Queen's Lancashire Regiment. Mr Mousa died two days after his arrest.

A post-mortem examination found he had suffered asphyxiation and at least 93 injuries to his body, including fractured ribs and a broken nose. An inquiry into his death concluded it was the result of a combination of his weakened physical state and stress holds administered by soldiers.

It is relevant to Northern Ireland because the inquiry had no power to judge any person's criminal or civil liability.

Model one: Truth investigation with immunity from prosecution

Any soldiers giving evidence were immune from disciplinary action even if it suggested they had lied or withheld information previously. Their own testimony also could not be used to decide whether to prosecute them, but evidence from other witnesses could still lead to criminal proceedings.

The first hearing was held in July 2009. Hearings were held on 115 days, with closing submissions in October 2010. It heard some 247 witnesses give oral evidence and a further 101 witnesses provided written statements.

The inquiry found Baha Mousa died after suffering an "appalling episode of serious gratuitous violence" in what it called a "very serious breach of discipline" by UK soldiers. The 1,400-page final report said a "large number" of soldiers assaulted Mr Mousa and the other detainees, and he added that many others – including several officers – must have known what was happening.

A similar investigatory body could be set up here which could compel witnesses to attend and give evidence in return for an undertaking that their testimony could not be used to prosecute them, and possibly not to prosecute others either.

This is the sort of inquiry the family of Pat Finucane, the murdered solicitor, have suggested they might accept.

Model two: stay on prosecutions

The model proposed by John Larkin, the Attorney General.

There would be a cut-off point before which no legal action could be taken over any offence. At the same time State records would be made available on what was known about offences. There would be no formal investigatory body. The paper says that this proposal would reduce the £30m a year cost of investigating the Troubles and "might create a space where offenders are more willing to admit their actions".

It cautions that, although amnesties have been allowed by the European Court, a complete halt to invest- igations might cause problems. It warns that a stay on prosecutions "would not prevent stories related to the past continually filtering in public discourse. Such a failure to 'manage' the past carries with the risk of political instability".

Model three: Truth commission and amnesty

A commission would be set up which could investigate individual cases and specific events, examine the causes, context, and consequences of violence.

It could also look at "patterns of abuse and thematic issues" such as security force collusion and "allegations of IRA ethnic cleansing along the border".

This model is similar to the one used in South Africa.

Under it "offenders would be encouraged to come forward voluntarily". They would, if their application for amnesty was accepted, be guaranteed that they could not be prosecuted on the basis of what they said, provided that they told the full truth.

The paper states "a successful amnesty application would negate both criminal and civil liability for the disclosed offences".

However, and crucially, it would not represent a denial that the crimes had actually occurred.

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