25 February 2009

An Iraqi who claims his brother was arrested by British forces and tortured and killed during the Iraq war has failed in a High Court bid to win an inquiry into the death under human rights laws.

Kahdhim Resaan Hassan claims his brother, Tarek, was detained at a coalition military camp in Iraq where he was tortured and executed, before his body was dumped 400 miles away.

Lawyers for Mr Hassan argued in court that his family was entitled to an inquiry under the European Convention on Human Rights.

But today Mr Justice Walker, sitting in London, upheld Ministry of Defence arguments that the case was "outside the geographical scope" of the European convention.

Mr Hassan, 38, from Basra in southern Iraq, claims that he was the intended target of the raid by British troops in April 2003 during the height of the war in Iraq, but that his brother, who was 22 at the time, was arrested in a case of mistaken identity.

The judge said it was common ground that during the main hostilities phase of military action, Tarek was captured by UK forces and taken to Camp Bucca.

"However, the claimant, who is Tarek's brother, has described how in early September 2003 his family learnt that Tarek's dead body had been found in the countryside.

"The claimant and another brother went to the morgue and viewed the body. Tarek's hands were tied with plastic wire.

"His body had many bruises. In his chest there were eight bullet wounds, along with Kalashnikov bullets."

The judge said lawyers for Mr Hassan, who was legally-aided, had acknowledged that other legal remedies not based on the human rights convention might be available to Tarek's family.

However, given the present state of the evidence, it was only under the convention that they could seek the remedies they wanted.

The judge said Iraq was not a signatory to the convention, and the Defence Secretary argued he was only responsible for events within the UK's territorial jurisdiction.

Mr Hassan said his brother had been guarded at Camp Bucca by US forces acting as agents for the UK.

Rejecting his application for a judicial review of the MoD's refusal to hold an inquiry, the judge ruled: "Even if while Tarek was at Camp Bucca the UK had there an Officer in Command, a Commanding Officer and a senior team, that would not persuade me that Camp Bucca was a UK military establishment."

Under a "memorandum of understanding" it remained a US military establishment "and the presence or absence of UK personnel did not affect this".

The "defining feature" of the case was that the UK was not able to impose its own law at the camp, and thus insist on compliance with the European convention, said the judge.