The families of 14 men killed by British paratroopers in Derry in Northern Ireland on January 20 1972 – “Bloody Sunday” – have been paying close attention to a ruling of the High Court in London in the case of Khunder al-Sweady.
Mr. al-Sweady is one of six Iraqis who claim that soldiers of the Princess of Wales Royal Regiment tortured and murdered a number of civilians in southern Iraq in May 2004. On October 6th last, three judges ruled on the men’s application for previous decisions to be set aside and a new, public inquiry ordered into the incident.
Upholding the application, Judges Scott Baker, Silber and Sweeney, none of them noted as a radical maverick, accused the Ministry of Defence (MoD), the Royal Military Police and the Treasury Solicitors of deliberately withholding evidence and of dishonesty with regard to the evidence which they did present. Civil servants from the Treasury Solicitors were said by the judges to have lied persistently in telling the court that they knew of no undisclosed documents which might throw light on the case.
Under current plans for publication of the Bloody Sunday report, the Treasury Solicitors – in essence, the British Government’s solicitors – will be allowed to go through the text after it has been delivered to the Northern Ireland Office but before the public, including the Bloody Sunday families, are allowed to see it. According to Northern Ireland Secretary Shaun Woodward, the reason is so that they can recommend the removal of passages which they reckon might contravene the rights under Article Two of the European Human Rights Convention of anyone named in the Report
Woodward himself would then decide whether to accept or reject the recommended cuts.
Article Two deals with the right to life. Woodward’s concern, so he says, is that the lives of soldiers might be put at risk if they were identifiable from the Report.
The implication is that Saville, a senior British Law Lord, William Hoyt, former Chief Justice of New Brunswick, and John L. Toohey, a former member of the Federal Court of Australia and a Justice of the Supreme Court of the Northern Territories, may have failed to discharge their duties under Article Two in compiling the Report and that the Treasury Solicitors must be brought in to check on their work.
Saville and his colleagues dealt with a series of Article Two applications during the hearings. The applications came mainly from soldiers, politicians and others who claimed that their lives would be at risk if they were made to testify in Derry and from others who, on the same ground, claimed a right to anonymity. The notion that the three members of the Tribunal might not be up to speed on Article Two is fanciful. That this is being advanced as a reason for giving British officials an opportunity potentially to tamper with the Report before its publication may indicate that Woodward tried but failed to come up with an even remotely plausible excuse for planned political interference with a judicial report.
The Treasury Solicitors were the instructing solicitors for barristers representing British soldiers at Tribunal hearings.
The arrangements proposed by Woodward would also give the soldiers’ side a huge advantage when it comes to responding to the Report. It is expected that the document, to be published next March or April, will run to more than 4,000 pages. Allowing British officials to comb through the text for two or three weeks (Woodward’s estimate) before the families set eyes on it – the relatives are to be given access in a “secure environment” for 10 hours before publication – will mean that the soldiers’ supporters will be much better prepared than the families for the propaganda battle which will erupt once the findings are in the public domain. The British side will have had ample opportunity to tease out any sentence which can be quoted to suggest that the soldiers’ behaviour had been reasonable in the circumstances or that marchers on the anti-internment demonstration that the paratroopers fired into had somehow been the authors of their own misfortune.
The apprehension of the British authorities at the Report’s possible findings has been expressed over the past year in a barrage of abuse aimed at Saville from right-wing politicians and commentators. He has taken far too long to complete his task, they say. His Inquiry has cost far too much. And maybe so. But there are mitigating factors.
It will be 11 years in January since Tony Blair announced the establishment of the Inquiry. There were 434 days of hearings between March 2000 and November 2004. The judges have since spent five years writing up their findings. The final cost is likely to be around £200 million.
One reason for the length and cost of the exercise is that Bloody Sunday happened in broad daylight in a built-up area thronged with people gathered for a rally following a 10,000-strong civil rights march. Every death and wounding was witnessed by dozens of people huddled in the gutters or crouched behind lamp-posts or peering from the windows of houses and flats where they’d found shelter from the shooting. A total of 921 witnesses gave oral evidence, written statements from a further 1,555 were read. Sixteen million words were spoken. In all, around 40 million words, plus 109 videos and 13 volumes of photographs were considered. No military operation in British history – maybe history full stop – has ever been subjected to such detailed examination. It was the brazenness of the atrocity which made this possible. And then the Tribunal – to the amazement and concern of those who’d set it up, apparently – took its task seriously and grasped the possibility.
As well, the soldiers’ Article Two claims resulted in a series of delays as bevies of barristers betook themselves to the higher courts for arcane argument. Hearings were further delayed by applications from the soldiers’ representatives for the exclusion of items of evidence on the ground that disclosure would compromise national security.
All the time, the lawyers’ taximeters were whirring at a rate of up to 2,000 guineas (guineas!) a day.
In the al-Sweady case, applications were made by the MoD last May to have evidence which “related to the permissible limits of the techniques of tactical questioning of captured individuals by military interrogators” ruled out on grounds that exposure would damage national security. At that point, the court accepted the integrity of the Defence Minister who had signed the relevant Public Interest Immunity (PII) certificates.
But on October 6th, the High Court judges said that the MoD’s intention in making the applications had in fact been to thwart the court by concealing evidence: “The Secretary of State had relied on what transpired to be a partly false public interest immunity certificate…The court had been persuaded that the balance of public interest required that the material should not be disclosed. It was a matter of deep regret that the court…as a result had made a number of rulings which had subsequently been shown to have been wholly wrong. The court should not have been misled…
“Until such time as the Ministry had demonstrated that it had taken steps to ensure that false assertions were never again made in a [PII) certificate and schedule, it would, in the court’s view, be incumbent on the courts to approach the content of any such documents from the Ministry with very considerable caution.”
Far from resigning in face of this indictment, Defence Minister Bob Ainsworth has not felt compelled even to offer a comment. There have been no calls for his sacking from parliamentarians or in the editorial columns of any but fringe, radical journals.
The al-Sweady case demonstrates that there are few lengths to which the British ruling class won’t go to hide evidence of its army’s criminality. This is what they are at when they seek to pollute the atmosphere in which Saville’s conclusions are made public.
The complaints about the time Saville’s Tribunal has taken to report, against the background of the al-Sweady case and given the quarters the complaints are coming from, can fairly be regarded as arising from fear that Saville might, by exposing the truth, illuminate an appalling vista.
It shouldn’t need repeating, but it does, that Bloody Sunday differs from the other atrocities which litter the recent history of Northern Ireland in this crucial respect – that this wasn’t an outrage perpetrated by people purporting to represent one community against people from another community – much as that is the perspective in which Irish Nationalist and Ulster Unionist as well as British politicians either pretend or tend instinctively to see it.
When the State kills its citizens it is the interests of all that the truth be uncovered and those responsible held to account.
The armed group responsible for Bloody Sunday hasn’t called a ceasefire or decommissioned its weaponry but has moved on to other theatres of war, where, as in the case of Mr. al-Sweady, allegations of outrageous behaviour continue to be made.
Mr. al-Sweady, Hussein Fadel Abass, Atiyah Sayid Abdelreza, Hussein Jabbari Ali, Mahdi Jassim Abdullah and Ahmad Jabbar Ahmood claim that that, following a gun-battle on May 14th/15th known as “the Battle of Danny Boy”, around 20 Iraqis, including farmers caught in crossfire who had sought cover in adjacent fields, were taken at gunpoint by soldiers to the nearby Camp Abu Naji where they were hooded and had their hands tied, were kicked and jumped on until bones were smashed, in some cases had their eyes gouged out or their genitals pulped. A number were then shot or hanged. The six say they are the survivors. They say that a previous investigation by Royal Military Police fell short of the requirements of Articles Two, Three and Five of the European Convention. Hence the appeal for a new, public inquiry now upheld by the High Court
The determination of senior British politicians and commentators in predictable newspapers to damage Saville’s credibility in advance is similar in intent to the political and civil service misbehaviour in the al-Sweady case which the High Court has deemed disgraceful. The purpose in both instances is to conceal or obscure the truth.
Woodward, the chief political representative in Northern Ireland of the perpetrators of the Bloody Sunday massacre, should be told in no uncertain terms that the arrangements he proposes for publication of the Saville Report are indicative of bad faith, wholly outrageous and utterly unacceptable.
One of our problems is that Nationalist politicians here, including Sinn Fein, may be reluctant to alienate the British ruling class at a time when they and their Unionist partners/opponents want British endorsement of their position on how to solidify the wobbling power-sharing administration. The result is that some of the families may be left to fight the last battle for the truth about Bloody Sunday on their own.
(A summary of the al-Sweady judgement can be found at http://www.lawreports.co.uk/WLRD/2009/QBD/al-sweady.htm)
EAMONN McCANN can be reached at Eamonderry@aol.com