Army accused of human rights abuse in case of Iraqis held without trial for five years

High Court to rule on detention of two men held in what lawyers say is a Guantanamo-style legal black hole

Britain is accused of holding Iraqi prisoners of war in a legal black hole after it emerged that two men accused of killing British soldiers have been detained without trial for more than five years.

The suspects, the last two Iraqis held in British custody, were arrested by UK forces at the end of the war and then moved between three different prison camps in southern Iraq. They claim to have been secretly detained without charge and refused legal representation.

In a letter smuggled out of Iraq, the two men call on the British government to release them or give them a fair trial.

Faisal Attiyah Nassar al-Saadoon, 56, and Khalaf Hussain Mufdhi, 58, are accused of being involved in the executions of two British soldiers captured during battles with Iraqi military forces in the first three days of the war in March 2003.

The men, both members of the Baath party government in Basra, deny any involvement in the fighting and claim they have been trapped in a legal black hole similar to the one created by the US at Guantanamo Bay to deal with so-called battlefield unlawful combatants.

The two British soldiers' deaths are believed to have been the first army fatalities of the invasion. At the time Tony Blair described the killings as an act "of cruelty beyond all human comprehension", while George Bush said the deaths amounted to a war crime.

The Defence Secretary, Des Browne, was last night considering an emergency request from a firm of human rights solicitors accusing the Government of breaching the terms of the Geneva Convention and the Human Rights Act. The case is expected to be heard by the High Court in the next few days.

In a desperate plea to Gordon Brown, Mr al-Saadoon, arrested by the British Army in April 2003, and Mr Mufdhi, arrested in November 2004, say: "We hereby request you urgently to put an end to our ordeal and ensure our release to return to our families, who have been through tremendous suffering over the past years."

The men are being held in connection with the deaths of Staff Sergeant Simon Cullingworth, 36, and Sapper Luke Allsopp, 24, on 23 March 2003, near Basra on the same road where the ITN journalist Terry Lloyd was killed.

Both soldiers were serving with 33 Engineer Regiment on bomb disposal duties. Having survived an ambush, they were taken from their Land Rover at Al-Zubair, a town near Basra, and shot. Their bodies were found in a shallow grave.

The two former Baath party officials deny any involvement in the killings. The British authorities said the pair's case had been passed to the Iraqi justice system. But the men remain in prison cells at the British base at Basra airport.

In their joint statement the men say: "We believe that the British soldiers killed in Basra during the first three days of war died in a confrontation with the Iraqi army, which was defending Basra. We were not even part of the Iraqi army or involved in security forces; we were part of a civilian political organisation."

Phil Shiner, of Public Interest Lawyers, the solicitor instructed by the families to seek their release, said there was no legal basis for their detention.

Mazin Younis, chairman of the Iraqi League in the UK, which was contacted by the two men's families last month, said the case had echoes of the US detention of enemy combatants: "It was absolutely shocking to see how the British Army started mimicking a Guantanamo-style detention procedure, with complete and utter disregard for any human or legal rights. I fail to understand the logic behind keeping these two men in British custody for over four and a half years without trial."

He added: "Are we now using the American term unlawful enemy combatants to justify denying Iraqis their rights according to the Geneva Convention?"

The only legal authority for the men's detention appears to have been two appearances before a UK military committee and one in front of an Iraqi tribunal. The men, who have been moved to a British Army base at Basra airport, say they were unrepresented on all three occasions and claim not to have seen proper charges against them.

A spokesman for the Ministry of Defence said: "The criminal case against the two detained persons has been sent to the Supreme Iraqi Criminal Court in Baghdad.

"They are being lawfully held by UK forces pursuant to Iraqi law that allows the detention by coalition forces of persons suspected of having committed criminal acts, at the request of appropriate Iraqi authorities for security or capacity considerations. As proceedings have been issued, we cannot comment further on this case."

Soldiers' deaths 'could have been prevented'

Staff Sergeant Simon Cullingworth and Sapper Luke Allsopp should never have been in the town of Al-Zubair, near Basra, where they were ambushed, caught and later possibly executed in March 2003.

Ordered to clear a site for a radio communications base, they should have been told to give the small town a wide berth. Instead they were sent through the outskirts and, when they took a wrong turn, ended up driving into an ambush of bullets and a rocket-propelled grenade.

At the inquest into their deaths in 2006, Lance Corporal Marcus Clarke, who was driving the Land Rover behind, said that he heard Staff Sgt Cullingworth shouting "Keep up, keep up!" over the radio. He described how their attackers ran towards the vehicles, firing at them.

Andrew Walker, the Oxford coroner, said that the danger in which the soldiers were put should have been anticipated. "They were ambushed and taken to a temporary Baath party headquarters, where evidence suggests that they were both alive," Mr Walker said. "From there they were taken ostensibly to a hospital but, in fact, to an Iraqi military intelligence compound. They were shot and killed in that compound."

His verdict was damning: "Headquarters knew that it was a dangerous area... If the proper procedures had been followed then no one should have been allowed to use that route."

The men's bodies were found a month later. The discovery unleashed a chain of events that led, say their lawyers, to the five-year detentions of Faisal al-Saadoon and Khalaf Mufdhi.

Robert Verkaik

What happened next? The legal actions

Lawyers for five Iraqis, including a tribal leader from Basra, have asked the MoD to investigate allegations that the men were abused by British soldiers after raids on their homes last year.

The claims are being prepared for legal action in the UK courts by Phil Shiner of Public Interest Lawyers. Mr Shiner has written to the Government asking that the cases be considered at the public inquiry into the deaths and abuse of Iraqi civilians by British soldiers. The inquiry was announced last month by Des Browne, the Secretary of State for Defence.

Jabbir Hmoud Kammash, 70, a leader of the Albu-Darraj tribe in southern Iraq, alleges that a group of 20 soldiers raided his home in the early hours in April last year while the family were celebrating the birth of his grandchild, as reported by 'The Independent on Sunday' on 6 April.

The High Court in London is expected to hear a case brought by Suhad Jassim Mohammed, whose husband was murdered by Iraqi militia because of his work for the British Army, as reported by the 'IoS' on 4 May 2008.

Sami Mohammed was working for the British Army as an interpreter when he was abducted and killed on 14 August 2006. The family's solicitor, Sapna Malik, said: "It is clear that there was a dereliction of duty when it came to protecting the very people who risked their lives to assist the British forces. The Army was content to use Iraqi interpreters and yet did nothing to protect them when it became clear their lives were in danger."

A second case challenging the Government's refusal to allow hundreds of interpreters and their families to live in the UK is expected to be heard in the High Court later this year.