Human Rights Law Review 10:4 ß The Author [2010]. Published by Oxford University Press.
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Soldier Photography of
Detainee Abuse in Iraq: Digital
Technology, Human Rights and
the Death of Ba ha Mousa
Noel Whitty*
Digital media technologies provi de new opportunit ies for the record ing
and publicising of human rights violations. In recent years, soldier pho-
tography during military conflicts has bec ome one of the most contro-
versial sources of images of abuse, especially in relation to the visual
representation of detainees. The backdrop to this article is the death of
Baha Mousa, an Iraqi civilian who died while in detention on a British
Army militar y base in Basra in southern Iraq in 2003. A soldier’s video
footage of Mr Mousa’s treatment in the detention facility has helped to
generate a range of cultural, political and legal effects, not least an on-
going official Inquiry into the c auses of his death. But while new
media technologies, such as mobile camera-phones, can provide an ex-
panded visual record of human suffering and death in war zones, this
article argues that this brings dangers as well as possibilities. More gen-
erally, it raises quest ions about how human rights practitioners should
respond to the increasing visualisation of witnessing.
1. Introduction
The development o f new media technologies has had importa nt consequences
for human rights law and practice. The use of mobile camera-phones and com-
pact digital video recorders, allied with almost instantaneous Internet posting,
has provided new ‘te chnologies of witnessing’.
1
More generally, the concept
*Professor of Human Rights Law, University of Notti ngham (noel.whitty@nottingham.ac.uk).
My thanks to Therese Murphy, Daria Davitti, David Fraser and two anonymous referees for
their very helpful comments.
1 McLagan, ‘Making Human Rights Claims Public’, (2006) 108 American Anthropologist 191 at
191.
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of ‘human rights visual culture (‘‘what do human rights look like?’’)’
2
is u nder-
going p rofound change as digital imagery takes on a central, and even crucial,
role. Whether in the context of huma n rights lobbying and educational ca m-
paigns, publicising marches and demonstrations or the recording of abuse
and victim testimonies, the use of new media te chnologies is now common
practice. Pe rhaps more significantly, the const ruction of human right s claims,
and the extent of public and media engagement w ith t he issues raised by
these claims, can depend on the availability of visual evidence.
3
The ability, in
the digital era, to transcend national boundarie s and effect a rapid g lobalisa-
tion of images is key: as Time magazine claimed in relation to the shooting of
an Iranian woman, Neda Agha-Soltan, at a Tehran pro-democracy protest in
2009, the mobile phone footage resulted in ‘probably the most wid ely wit-
nesseddeathinhumanhistory’.
4
Important questions are raised by this growth of new media technologies in
the human rights field, not least their impact on t he historic proble ms of
(mis)repres entation of the victim/violator by the mass media and political
elite s, and the inevitable contestation over controversial images of violence,
suffe ri ng or deat h.
5
In some contexts, of course, visual evidenceçwhether or
not in new digita l formatsçwill not be an in fluential factor in determining
either official reactions or public disgust.
6
As Stanley Cohen emp hasis es in
his book, States of Denial, it would be wrong to assume that increased visibility
and public knowledge of atrocities and suff eri ng will provoke outrage or effect-
ive interventions; on the contrary, images of human rights abuses may work
to further st rategies of denial amongst both state and non-state actors.
7
Furthermore, in relation to c ontemp orary military conflicts, governments
strenuously shape the visual experience of the public by deploying a range of
propaganda. It may also be the case that some imagesçnotably photos o f
2Ibid.
3 On how vi sual media shape human rights claims, see, for example, Girling, ‘‘‘Looking Death
in the Face’’: The Benetton Death Penalty Campaign’, (2004) 6 Punishment & Soci ety 271;
Gregory, ‘Transnational Storytelling: Human Rights, WITNESS, and Vide o Advocacy’, (2006)
108 American Anthro pologi st 195; and Torchin, ‘Ravished A rmenia: Visual Media,
Humanitarian Advocacy, and the Formation of Witnessing Publics’, (2006) 108 American
Anthropologist 214.
4 Time, 8 December 2009. Images of Saddam Hussein in his underwear while in prison, and a
video of his execution, were also uploaded to the Internet. See generally Reading, ‘Mobile
Witnessing: Ethics and the Camera Phone in the ‘‘War on Terror’’’, (2009) 6 Globalizations 61.
5 Se e, for example, Campbell, ‘Atrocity, Memory, Photography: Imaging the Concentration
Camps of Bosnia ^ The Case of ITN versus Living M arxism, Part 2’, (2002) 1 Journal of
Human R ights 143; and Morrison, ‘‘‘Reflections with Memories’’: Everyday Photography
Capturing Genocide’, (2004) 8 Theoretical Criminology 341 .
6 Se e Garland, ‘Penal Excess and Surplus Meaning: Public Torture Lynchings in
Twentieth-Century Americ a’, (2005) 39 Law & Society Review 793 (regarding the photograph-
ing of ‘the torture and killing of a man by a mob’ and the widespread d istribution of such
images on picture postcards).
7 Cohe n, States of D enial: Knowing About Atrociti es and Suffering (Cambridge: Polity Press, 2001).
Cf. Sontag, Regardin g the Pain of Others (London: Penguin, 2004).
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atrociti es in World War IIçfix the memory of past events in ways that limit our
unde rstanding of, and responses to, visual coverage of contemporary atroci-
ties.
8
That said, the power of the visual can also be extraordinary: in some con-
texts, a representation of a human rights violation has both main stream
cultural impact and re markable political and legal effects. So, why is it that
some images of suffering operate in this way? More particularly, how should
human rights practitioners respond to the increased visualising of witnessing?
These questions are explored in a general way in this ar ticle. S ection 2 out-
lines one particular controversy over human rights visual imagery: the case
of Baha Mousa, a 26-year-old Iraqi civilian who died in September 2003
while being detained f or quest ioning on a British Ar my military bas e in Basra
in southern Iraq. The circumstances of his d eath are the subject of an ongoing
off icial I nquiry,
9
at which a soldier’s vid eo footage of Mr Mousa’s treatment in
the detention facil ity is a key part of the evidence.
Section 3 looks briefly at the history o f soldier photography in war zones. It
will be seen that, in one respect, the Mousa case is far from unique: s oldier s re-
cording the abuse and death of prisoners, or of civilian populations, has been
a common phenomenon in wartime. Moreover, from the Nuremberg Trials on-
wards, soldier photography has been used to establish accountability. Ne w
media technology, however, changes the concept of the ‘soldier photographer’:
today’s mi litary equipment has the capacity to provide real-time visual records,
and mobile phones a nd digital cameras are also ubiquit ous in war zones. The
increased production of war imagery by soldiers i s not just an effect of ad-
vances in camera t echnology, however. The desire to record, and to visualis e,
personal experie nce is a key characteristic of increasingly mediated cultures
and lifestyles. Soldiers, even in war zones, are choosing to experience life
‘through a lens’. Exposed t o images ranging from t he banal to the horrific,
they increasingly capture and share photos with military colleagues, family
members, friends and wider global audiences on the Internet.
The final section of the a rticle looks at some of the visual evidence in the
Baha Mousa Inquiry; specifically, the v ideo of Mr Mousa i n detention. While
the proceedings of the Inquiry raise a w ide range of issues, including aspects
of evidence, humanitarian and human r ights law, my focus will be a general
one. The visual evidence of Mr Mousa’s treatment helped to translate a victim
claim into a wide-ranging human rights investigation, but it should not be
assumed that the Inquiry’s i nterpretation of the video images and the autopsy
8 Se e, for example, Zelizer, Remembering To Forget: Holocaust Memory Through the Camera’s Eye
(Chicago: Chicago University Press, 1998); and Brown, Regulating Aversion: Tolerance in the
Age of Identity and Empire (Princeton NJ: Princeton University Press, 2008) at 107.
9 Se e the Inquiry website, available at: http://www.bahamousainquiry.org/ [ last accessed 26
July 2010]. The Inquiry is established under the Inquiries Act 2005 and is chaired by a retired
Court of Appeal judge, Sir William Gage. Written submissions are identified by the author
name, the prefix ‘Sub’, and individual page numbers. Transcripts of testimony at the Inquiry
are identified by the witness name, the prefix ‘BMI’, and individual page numbers.
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photographsça ho oded body in distress, and a battered and bloodied face in
rigor mortisçwill validate the arguments made on behalf of the victim.
Images, whether moving or still, require interpretation and, in legal contexts,
the use of vis ual representations can have d istorting effects. Thus, although
new media technologies have the potential to publicise events in war zones,
and to provide a visual record of human suffe ring and death, an emphasi s on
the visual as the most authe ntic record of past human rights violations brings
with it dangers as well as possibilities.
2. The Death of Baha Mousa
The notoriety surrounding the death of Mr Mousa stems from a number of fac-
tors which, in combination, have produced unique effectsçmost notably, t he
ongoing Inquiry. Four factors have been especially significant. First, Mr
Mousa died as a result of 93 injuries inflicted by a group of British soldiers
over a 36-hour perio d in a detention facil ity on a United Kingdom (UK) military
base in Iraq. The UK Ministry of De fence (MoD) has now acknowledged that
‘brutality and inhumanity’
10
occurred, but lawyers acting for the father of Mr
Mousa allege that ‘a torture victim’
11
died in custody:
In layman’s terms, ...Baha Mousa was b eaten to death ...He died be-
cause his capacity to withstand continuing conditioning and beating di-
minished during the course of the se cond day [of his detention]. The
physical and psychological conditions that he was placed in (including
those resulting from hooding, stress positions, sleep d eprivation and de-
privation of food and water) combined to put h is body in an acutely vu l-
nerable situation. At the point of h is demise he was being attacked
again.
12
The second factor is the flaws in the military police investigation, and in the
court-martial of seven soldiers, in relation to Mr Mousa’s death. It proved im-
possible fo r a range of reasonsçfor example, evidential failings, delay and,
most notably, what Judge Advocate McKinnon described as a ‘closing o f ranks’
by s oldier witnessesçto establish fu lly how, and why, Mr Mousa died. Only
one soldier, Corporal Donald Payne, was convicte d of a war crime; after plead-
ing guilty to inhumane treatment of civilians, he was sentenced to one year’s
imprisonment in April 2007 and dismissed from the Army.
13
However, during
10 MoD Closing Sub001017 at para. 2.
11 Public Interest Lawye rs (‘PIL’) Closing Sub002341 at para. 328. For details on PIL, a solicitors’
firm led by Phil Shiner, see: http://www.publicinterestlawyers.co.uk/ [last accessed 31 July
2010].
12 PIL Closing Sub002322 at para. 291.
13 The charge was brought under the International Criminal Court Act 2001.
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the court-martial it became cle ar that so-called ‘conditioning techniques’ had
been used on Mr Mousa (and the nine other civ ilians detained with him), and
that such interrogation practicesçalthough unlawfulçwere generally
authorised by more senior levels of militar y command in the British Army.
14
Thirdly, the father of Mr Mousa, Colonel Daoud Mousa, sought a judicial
revi ew of the UK Sec retary of State of Defence’s refusal (in March 2004) to
order an independent inquiry into the circumstances of his son’s death. In
this test cas e, which was joined by the relatives of five other Iraqi civilians
who were killed in shooting incidents involving British soldiers on patrol,
it was established that the Human Rights Act 1998 (which incorporates
the Eu ropean Convention on Human Rights 1950 (ECH R)
15
into UK law)
has extra-territorial effect. However, the House of Lords ruled that the
extra-territorial reach of the ECHR was e xcept ional and l imited to geographic-
al spaces (such as an embassy) where the UK had sufficient authority and con-
trol to secure ECHR rights to everyone within that space.
16
A di stinc tion,
therefore, was drawn between the Iraqi civilian deaths occurring as a result
of the actions of British soldiers in combat operations or out on patrol in sout h-
ern Iraq, and a death occu rring on a UK military base. Bec ause Mr Mousa
died when in a British military prison, this was within the ‘jurisdiction’ of the
UKças d efined by Articl e 1 of the ECHRçand Colonel Mousa was entitled to
a legal remedy as a ‘victim’ under the Human Rights Act. The remedy he
sought was a proper and adequate investigation into a violent death (in cus-
tody) caused by agents of the state, as required by the procedural obligations
of Articles 2 and 3 of the ECHR.
17
In May 2008, the UK government fi nally
14 Physical and psychological coercion were used to extract information from detainees, includ-
ing five practicesçhooding, stress positions, subjection to noise, sleep deprivation and
de nial of food and drinkçwhich were formally ban ned by the UK Government in 1972 after
their use by the British Army in Northern Ireland. In Ireland v United Kingdom A 25 (1978);
2 EHRR 25, a majority of the European Court of Human Rights found that the combined
use of such practices amounte d to inhuman and degrading treatment, whil e three judges dis-
sented on the point and argued that the techn iques constituted tor ture. On the att empts by
US lawyers to evade the prohibit ion on torture, see Waldron, ‘Torture and Positive Law:
Jurisprudence for the White House’, (2005) 105 Columbia Law Review 1681. For an account of
UK complicity in torture, see Cruel Britann ia: British Complicity in the Torture and Treatment of
Terror Suspects in Pakistan (New York: Human R ights Watch, 2009).
15 E T S 5.
16 S e e R(Al-Skeini) v Secretary of State for Defence [2004] EWHC 2911 (Admin); [2006] EWCA Civ
1609; [2007] QB 140; and [2007] UKHL 26; [2008] 1 AC 153. For general discussion, see
Wilde, ‘The ‘‘Legal Space’’ or ‘‘Espace Juridique’’ of the European Convention on Human
Rights: Is it Relevant to Extraterritorial State Action’, (2005) 2 European Human Rights Law
Review 115; King, ‘The Extraterritorial Human Rights Obligations of States’, (2009) 9 Hu ma n
Rights Law Review 521; and Mill er, ‘Revisiting Extraterritorial Jur isdiction: A Territorial
Justification for Extraterrit orial Jurisdiction’, (2010) 20 European Journal of International
Law1223.
17 On the procedural investigatory obligation guaranteed by Article 2 ECHR, see R(Smith) v
Secretary of State for Defence [201 0] UK SC 29; [201 0] 3 WL R 223; R(L) v Secretary of State for
Justice [2008] UK HL 68; [2009] 1 AC 588; R (M idd let on) v West Som erset C oroner [2004] UKHL
10; [20 04] 2 A C 182; a n d R(Amin) v Secretary of State for the Home Department [2003] UKH L
51; [20 0 4] 1 AC 653. Se e a l s o Ramsa hai v The Netherla nd s 46 E HRR 983 at pa ras 324 ^ 325
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conceded that a public judicial inquiry into events at the Basra detention facil-
ity, involving the treatment of Mr Mousa and the other nine detainees, and
any other related matters, was required.
The fourth factor is the prominenc e of two pieces of visual evidence. Prior
to the Hou se of Lords hearing in the Al-Skeini litigation in April 2007, a press
conference was held by the lawyers for Colonel Mousa where 46 photographs
detailing the 93 separate injuries on his son’s body were presented.
Subsequent media coverage centred on one autopsy photograph in partic ular;
the close-up i mage of Mr Mousa’s badly b ruised face. The other piece of visual
evidence is a one-m inute video taken from a British soldier’s mobile phone re-
cording. The video shows a hooded and handcuff ed Mr Mousa, alongside five
other Iraqi deta inees in a room, being verbally abu sed and forced into painful
‘stress positions’ by Corporal Payne on the day before he died. It was originally
banned from public release by the Judge Advocate at the Payne court-martialç
on the ground that it would provoke further hostility towards Briti sh troops
then operating in Iraqç but, following its introduction into evidence at the
Inqu iry in July 2009, it has now been ‘replayed countless times on television
news bulletins, newspaper websites and on You Tube’.
18
The Mousa case is especially striking when viewed against an imperial trad-
ition of military interventions by British armed forces in the Middle East
region and elsewhere: the identity and fate of one civil ian death in war or in-
surrec tion has not usua lly made an impac t back in London.
19
One difference
from earlier eras is the growth, and global reach of, human r ights law and
practice; thus, in the Mousa case (and other 2003 Iraq war-related litigation)
a skilled legal team cou ld avail themselves of, and develop, the resources pro-
vided by the Human Rights Act 1998, the ECHR and other international
human rights instruments in order to as sert and defend the right s of Iraqi vic-
tims.
20
It is of especial significance that human rights law, as distinct from
international humanitarian law, has played such a prominent role in the task
(regarding the meaning of an ‘effective’ public investigation); and generally, Harri s et al.,
Harris, O’Boyle and Warbrick: Law of the European C onvention on Human Rights, 2nd edn
(Oxford: Oxford Universit y Press, 2009).
18 Davies, ‘Baha Mousa Inquiry: Geo ff Hoon Claims Ignorance of the Interrogation Video’,
Guardian, 10 June 2010. Mr Hoon was the Secretary of State for Defence be tween 1999 and
2005 .
19 Se e generally Porter, T he Lion’s Share: A Sho rt History of Bri tish Imperialism 1850-2004
(London: Longman, 2004). See further, Newsinger, British Counterinsurgency: From Palestine
to Northern Ireland (London: Palgrave, 2001); and Ande rson, HistoryoftheHanged:Britain’s
Dirty War in Kenya and the End of Empire (London: Weidenfeld & Nicolson, 2005).
20 See R (Hassan) v Secretary of State for Defence [2009] EWHC 309 (Admin) (regarding the in-
quiry into death of an Iraqi national in US custody after his transfer from British custody);
R(Al-Sweady) v Secretary of State for Defence [2009] EWHC 1687 (Admin) (regarding the alleged
killing and torture of Iraqi nationals by British forces); R(Al-Jedda) v Secretary of State for
Defence [2007] UKHL 58; [2008] 1 AC 332 (regarding the unlawful detention of an Iraqi
national); and Al-Saadoon an d Mufdhi v United Kingdom Application No 61498/08, Judgment
of 2 March 2010 (regarding the transfer of Iraqi nationals from British into Iraqi custody).
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of holding the British Army to account f or its actions as a n occupying force i n
Iraq. While various duties are placed on an occ upie r under international hu-
manitarian law, it is obvious that the positive obligations under the EC HR (f or
example, in relation to the effective investigation of controversial killings by
state actors) c an be much more extensive.
21
Another difference from earlier
eras is the nature and scale of legal activism, nationally and internationally,
around many aspects of the Iraq conflict.
22
Crucially, the U K judiciary has
been p repared to empha sise (new) principles of legality, distancing themselves
from the Bush Adm inistration’s position on torture, detention and interna-
tional human rights law more generally.
23
Indeed, it would not be an overs tate-
ment to say that the Iraq conflict has recast the legal relationship b etween
the UK state and warçand that one of the consequences is that the memory
and minutiae of a foreign military operation can now be opened up to forensic
scrutiny in legal environments of courts and p ublic inquiry rooms.
24
In the
proce ss, lawyers in military culture s, and the question of what constitute s
lega l expertise and legal risk in a war zone, have be en forced to the forefront
of c ontemporary warfare.
25
What is most striking about the Mousa case, however, is the existence of
particular visual representations of the time, place and context of Mr Mousa’s
violent deathçand, relatedly, the ability to acces s and re-access this material
21 Se e generally, Legality of the Threat or Use of Nuclear Weapo ns Advisory Opinion, ICJ Reports
(1 99 6) 226 ; L egal Consequences of the C onstruction of a Wall in the O ccupied Palestinian Territory
Advisory Opinion, ICJ Reports (2004) 136; Provost, International Human Right s and
Humani ta ria n Law (Camb ridge: Cambridge Univers ity Press, 2002); Abresch, ‘A Human
Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya’,
(2005) 1 6 European Journal of International L aw 74; and Gross, ‘Human Propor tions: Are
Human Rights the Emperor’s New Clothes of the International Law of Occupation?’, (2007)
18 European Journal of International Law 1.
22 Se e, for example, White, Democracy Goes to War (Oxford: Oxford University Pre ss, 2009);
R(G entle) v The Prime Minister [2008] UKHL 20; [2008] 1 AC 1356 (regarding an inquiry into
the UK government decision to invade Iraq); R(Smith) v Secretary of State for Defence, supra n.
17 (regarding whether the Human Rights Act 1998 applies to soldiers operating outside a
UK military base); and American Civil Liberties Union, The Torture Report, available at:
http://www.thetorturereport.org/ [last accessed 31 July 2010].
23 Se e, for example, Steyn, ‘Guantanamo Bay: The Legal Black Hole’, (2004) 53 International an d
Comparative Legal Qu arterly 1; Steyn, ‘The Lega lity of the Invasion of Iraq’, [2010] European
Human Rights Law Review 1; Greenberg and Dratel (eds), T he Torture Papers: Th e Road to Abu
Ghraib (Cambridge: Cambridge University Press, 2005); Kramer and Michalowski, ‘War,
Aggression and State Cri me: A Criminological Analysis of the Invasion and Occupation of
Iraq’, (2005) 45 British Journal of Crimin ology 446; and Sands, Lawless World: Making and
Breaking Gl obal Rules (London: Penguin, 2006).
24 A second judicial inquiry, the Al-Sweady Inquiry, into all egations of unlawful killings and tor-
ture by British military personnel at other locations in southern Iraq commenced in March
2010, available at: http://www.alswea dyinquiry.org/ [last accessed 28 July 2010]. See also
R(A l Zaki Mousa) v Secretary of State for Defence [2010] EWHC 1823 (Admin) (regarding the ap-
plication for an additional inquiry into alleged torture of over 100 Iraqi detaine es contrary
to Article 3 E C HR).
25 For d iscussion, see Kennedy, Of Law andWar (Princeton NJ: Princeton University Press, 2006);
and Sands, Torture Team: Uncovering Wa r Crimes in the La n d of the Free (London: Penguin,
2009).
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on the Internet. There are images of Mr Mousa in the hours before and after his
death at the hands of British soldiers; there are also images of the detention/in-
terrogation facilities constructed in a war zone, interior environments h istoric-
ally off-limits to public scrutiny. New media technology has, in other words,
made visibleçto a potentially vast global audience of spectatorsçwhat is usu-
ally kept hidden and unknown in wartime. Crucially, however, this visual evi-
dence did not appear, nor could it have had such p owerful effects, in a
vacuum. Rather, a sequence of key events had to unfold involvi ng a range of
media, military, political and legal actors. However, once in the wider public
domai n t he representations of Mr Mousa’s abuse came to be interpreted as evi-
dence pointing to wider, systematic ill-treatment of Iraqi detainees by the
Britis h Army. O f ficial strateg ie s of de n ial
26
were doomed to fail in the end be-
cause two key obs tacles could not be overcome: first, the vividness of the
visua l evi dence surrounding Mr Mousa’s death on a UK military base; and sec-
ondly, the judicial determination to extend the extra-territorial reach of
Article 2 of the ECHR so that a full official re-investigation became obliga-
tory.
27
The ‘gap’ in public knowledge between the two i mages of t he same
mançhoode d in detention, and as a corpse with a battered faceçcould not
plausibly be filled in any other way. The re-investigation, in the form of an offi-
cial judicial inquiry, has now been running for over two years.
The Inquiry has a systematic reach, including access to both the official
documentary trail and key witnesses.
28
Senior actors çsoldiers, pol iticians,
civil servants and legal advisersçhave been called upon to justify t heir actions
unde r cross-examination, and to do so against a backdrop of s ignificant con-
flic ts in witness testimony and documentar y evidence.
29
As a result, there are
now competing narratives about the exact role, and complicity, of various UK
ministe rial, bureaucratic, legal and military actors in the use of ‘conditioning
techniques’ on Iraqi detainees. The definition, pur pose and l egality of these
techniques (es pecially t he routine use of ho oding with sandbags), the
26 A re cord of some of t he denial strategies c an be found in UK Parl iament Joint Committee on
Human Rights, UN Convention Against Torture: Discrepancies in Evidence Given to the
Committee About the Use of Prohibited Interrogation Techniques in Iraq (H L157 / HC 527, 15 Ju ly
2008); and R(Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387 (Admin) (regarding
judicial criticism of MoD delay, non-disclosure and false public intere st immunity c laims).
27 For example, Lord Carswell in the House of Lo rds stated that Mr Mousa suf fe red ‘appalling
maltreatment’, but ‘due to a regrettable paucity of evidence it has not proved possible to
bring to justice those responsible for his death’ (Al-Skeini, supra n. 16 at para. 93). Lord
Justice Rix in the High Court stated: ‘[T]he burden lies on the Briti sh military prison authori-
ties to explain how he came to lose his life while in Br itish custody’ (Al-Skeini, supra n. 16 at
para. 287).
28 As of June 2010, the Inquiry had heard 247 witnesses and the MoD, for example, had
disclosed around 8,000 docu ments including dec lassi fied military orders and email
co mmunications.
29 For example, Donal Payne, the soldier seen abusing detainees in the Mousa vi deo, admitted to
lying in his evidence to his court-martial and alleged that many soldiers were involved in
viol ence against the detainee s: see Payne BMI32/72/8.
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motivations for the prolonged group violence against these particular detain-
ees and the failure of commanding officers to intervene at the time, have all
become key issues of contention.
30
One especially significant as pect of the
Mousa Inquiry is the evidence indic ating the influence of United States (US) in-
terrogation and detention policies (which were explicit ly developed contrary
to Geneva Convention standards
31
) on U K military practices and priorities in
Iraq. That evidence, from mil itary and legal personnel, includes the following:
[Banning hooding would affect] UK involvement in US ops where blind-
folding is the milder end of the spectrum ...
32
We would also need to be clear what we would do in practical and policy
terms if the [UK Attorney General] gave clear advice that [hooding] was
illegal but the US ...disagreed and wanted to continue using it in s ome
circumstances.
33
[The] US made clear that they felt the UK were not getting the inf orma-
tion from inte rrogation that the US expecte d, which inevitably had an
effect on relations with the UK’s principal coalition partner.
34
The Divis ional Headquarters found itself in the extra-ordinary position of
seeking the h ighest standards for prisoners but, being knocked back by
those in senior legal and political posts.
35
However, it is the images from the war zoneçimages that were taken by soldier
photographer sçthat give conte xt to the Inquiry narratives. The image of a
hooded Mr Mousa being ‘conditioned’, and of other Iraqi detainees hooded in
armoured vehicles and elsewhere,
36
require in-depth explanation. Moreover,
the autopsy photograph of Mr Mousa’s bruised face is being constantly
re-circulated by the media as the headline to news items about the Inquiry
and, more generally, about the issue of tor ture in Iraq. In Section 5, I look
more closely at this visual ev idence; first, however, the issue of soldier photog-
raphy needs to be put in perspective.
30 The Inquiry has heard conflicting accounts of the legal regime applicable to the British A rmy
in Iraq and, in particular, the legal standards which apply to prisoners of war and civilian d e-
tainees in occupied territory during times of international armed conflict. For account s of
the relevant law, including the Fourth Geneva Convention general requirement of ‘humane’
treatment of civilian detaine es (as set out i n Articles 3, 5, 27, 31, 32, 85 and 89), see MoD
Closing Sub000953-1016; and PIL Victims’ Respons e to MoD Sub002843-71.
31 Se e Sands, supra n. 25.
32 Duncan MOD022183 (email 16 September 2003). Brigadier Duncan was a senior member of
the Intelligence Corps in Iraq in 2003.
33 Ro se MOD050809 (email 17 May 2004). Vivien Rose was a legal adviser in the MoD in
2003^04.
34 Duncan BMI06051 at para. 61.
35 Mercer BMI04082 at para. 99. Lt Colonel Mercer was a senior military lawyer in the British
A rmy in Iraq in 2003.
36 For examples of photos, see MOD 049409 and MOD054301.
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3. Soldiers, War Photography and New Media Technologies
To photograph a war zone assumes a presence in the war zone. Only sold iers
and m ilitary photographer s have access to t he u ncensored sights of the battle-
field. Photo-journalism, from its earliest days, has been subject to strict mili-
tary and political controls; these in turn meant that the p ublic’s exposure to
war images could be regulated and managed. New media technology chal-
lenges these norms. In this part, three points are examined: first, the different
types of war phot ography; secondly, the way that new media technology is
changing the visu alisation of war; and thirdly, t he habits of soldiersçusing
digital cameras, and access to the Internet, to document every aspect of the ir
experiences in contemporary war zones.
A. War Photos: Offici al and Unofficial
War photography is nothing new. The tradition of photographing the soldiers,
battles, casualties and aftermaths of military campaigns can be traced right
back to the time of the first cameras in the nineteenth century. The tradition
of censorship can be traced back too: from the photos of the Cri mean War in
the 1850s to the first, extensive, televised reportage of the war in Vietnam in
the 1960s, and i n every military conflict since, the ideological and emotional
potential of the images of war has been contested.
37
One constant in official
war photog raphy, therefore, is the relationship between governments, mil itary
authorities and me dia organisations in relation to the images of war (especially
during the conflict).
38
For example, only 200 official photographs were made
available to depict the 1982 Falklands War, while rep resentations o f the 1991
Iraq War focu sse d predominantly on the technological superiority of US mili-
tary action to the exclusion of images of deaths and suffering.
39
More recently,
the interest of the Bush Administration i n regulating the visual field of US mili-
tary act ion, and the deference thereto of both US polit ical and media establi sh-
ments, was encapsulated in the refusal to show images of the returning
coffins of US military personnel.
40
37 Se e L e w i n s k i, The Camera at War: A History of War Photography from 1848 to the Present Day
(London: WH Allen, 1978); Knightley, The First C asualty: The War Corresp ondent as Hero and
Myth-M aker f rom the Cri m e a to Iraq, 3rd edn (Baltimore MA: John Hopkins University Press,
2004); and Carruthers, The Me d ia at War: Com mun i cati on a n d Conf li ct in the Twentieth C entu ry
(Basingstoke: Macmillan, 2000).
38 Se e further International Council on Human Rights Policy, Jour nalism, Media and the
Challenge of Human Rights Reporting (Geneva: ICH RP, 2002).
39 See Taylor,War Photography: Realism an d the British Press (London: Routledge, 1991); and Body
Horror: Photojournalism, Catastrophe an d War (Manchester: Manchester University Press,
1998).
40 Cf. King, ‘The Afghan War and ‘‘Postmodern Memory’’: Commemoration and the Dead of
Helmand’, (2010) British Journal of S ociology 1.
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Unofficial or personal war photography is also not a new phenomenon.
Soldiers have always taken ‘memento’ photos of different aspe cts of their mili-
tary lives when on deployment. Images of comradeship, daily ba rracks li fe, ‘for-
eign’ lands capes or as sociations wit h mi litary equipment (such as posing with
guns or on tanks) can be found from many military conflicts. What distin-
guished these type s of representations hist or ically, however, was their personal
nature, a limited intended viewing audience of comrades and family and their
disconnect from the actual details of any milita ry operations.
41
The physica l
characteris tics of the camera were also an obvious limitation on these types
of photos: the taking, developing and circulating of images of personal life in
a war zone is always dependent on the available technology. Up until the cur-
rent digital era, for example, personal rolls of fil m might only be able to be
developed in commercial outlets when foreign military tours were over.
42
Atrocity photographs, the mos t notorious war images, admit of no easy clas-
sification. These photos recordi ng the abuse or deaths of individuals were
taken for a multitude o f official and/or personal purposes. Atrocities com-
mitted by the Nazis and their collaborators in World War II were not hidden,
but were recorded in obsessive quantity and detail. Photos of rape, torture, exe-
cutions, the mutilation of bodies and the immediate aftermath, such as soldiers
standing over graves of the dead, often provided a p recise visua l reco rd of the
victims, the lo cation and the identity of the perpetrators. The interior environ-
ments o f some of the concentration camps, where extermination practices led
to t he d eaths of millions of Jewish and other victims, were also captured by
official Nazi photographers in order to create a visual record. A longside still
photography, propaganda films s howing deportations, mass executions and
the se xual abuse of women were also p roduced and distributed.
43
Differe nt reasons have been offered to explain the creation by soldiers of
these official archives: for example, to demonstrate racial/cultural supremacy;
to validate military superiority; to prove that orde rs were carried out; to intimi-
date target populations; or to satisfy sadistic impulses. This soldier photog-
raphy was always part of a dehumanisation process: the p hoto was ‘an
integral part of the humiliation proce ss; in a sense it compl eted the violation’.
44
41 On the role o f t he camera in colonial settings, where the proximity of war and everyday life is
reflected in photos, see, for example, Ryan, P icturing Empire: Photography a n d the
Visualization of the British Empire (Chicago: Chicago University Press, 1997); and Hight and
Sampson (eds), Colonialist Photography: Imag(in)ing Race an d Place (London: Routled ge, 2002).
42 The court-martial of four Britis h soldiers for abuse of Iraqi civilians at Camp ‘Bread Basket’
nea r Basra in May 2003 was triggered when the film was handed in for processing at a
shop back in Eng land. The film consisted of 22 images of soldiers assaulting Iraqis who had
be en undressed and bound, and also of images of forced simulated sex: see Gillan, ‘Soldiers
in Iraq Abuse Ca se Sent to Prison’, Guardian,26February2005.
43 For detailed sources, see Struk, Photographing the Holocaust: Interpretations of the Evidence
(London: IB Tauris, 2004). See also Morrison, supra n. 5, for a discussion of the atrocity photo-
graphs take n by Japanese soldiers be tween 1934 and 1945.
44 Struk, ibid. at 64.
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But the p rac tice of collecting at rocity photo s we nt beyond this. Many other
photos of humiliation and atrocities were taken by soldiers unofficially, and
stored in family photo albums, ostensibly as personal mementos of willing par-
ticipation. Some photos ‘were even sent to relatives and friends in Germany,
with dedications written on the back’.
45
Since the Nuremberg war crimes trials, the implications of soldiers using
cameras to record their abuse or killing of detainees or civilians during war-
time is legally unambiguous.
46
Representations of military personnel engaged
in atrocities have also had evidential, emotional and ideological impacts on
war crimes trials.
47
Video evidence, for example, played a key part in the evolu-
tion of the International Criminal Tribunal for the Forme r Yugos lavia (ICTY),
with its early creation of a c omputerised archive of over 300 videos of witness
testimony of atrocities in the Bal kans. Additionally, in a number of ICT Y case s,
prose cution reliance on the discovery of ‘execution vi deos’ recordi ng paramili-
tary forces killing civilians, or military co mmanders present at the scene of
war crimes, has proved legally significant.
48
The use of cameras in wartime detention facilitiesisdealtwithbythe1949
Geneva Conventions which mandate ‘humane treat ment’ at all times for per-
sons held in captivit y. Article 13 of the Third Geneva Convention in relation
to the Treatment of Prisoners of War 1949 and Article 27 of the Fourth
Geneva Convention in relation to the Protection of Civilian Persons in Time of
War 1949, spe cifically provide protect ion against ‘public curiosity’
49
ça te rm
universally interpreted as requiring a ban on photographs or films identifying
a detainee’s face.
50
The implication, theref ore, is that cameras should always
45 Levin and Uziel, ‘Ordinary Men, Extraordinary Photos’, at 6, available at: http://www1
.yadvashem. org/odot_pdf/Microsoft %20W ord%20 -%202290.p df [last accessed 3 1 July 201 0].
46 Prosecutors at the International Military Tribunal in Nuremberg introduced photographic
and film evidence of atrocities in relation to the charges of war crimes and crimes against
humanity. Note also that the International Military Tribunal for the Far East held that the
Japa nese government’s censorship of photographs depicting mistreatment of prisoners of war
was evidence of the government’s c omplicity in war crimes: see United States v S adao Araki
(International Militar y Tribunal for the Far East, 4^12 November 1948) reprinted in (1 9 79) 60
International L aw Studies 437.
47 Se e Bloxham, G enocide on Trial: War Crimes Trials an d the Formation of Holocaust History and
Memory (Oxford: Oxford University Press, 2001); Douglas, ‘Film as Witness: Screening ‘‘Nazi
Concentration Camps’’ before the Nuremberg Trial’, (1995) 105 Ya l e L a w J o u r n a l 449; and
Frase r, Law After Auschwitz: Towards a Jurisprudence of the Holocaust (Durham NC: Carolina
Acade mic Press, 2005).
48 Se e Hagan, Justice in the Balkans: Prose cuting War Crimes in the H ague Tribunal (Chicago IL:
Chicago University Press, 2003) at 45^46. In June 2005, in the Slobodan Milos› evic
¤
case, the
ICTY vie wed video footage s howing a Serbian paramilitary unit, calling itself the Scorpions,
execute six Bosnian Muslim men and teenagers captured after the f all of Srebrenica in 1995.
49 75 UNTS 135 and 75 UNTS 287, respectively. The relevant part of Article 27 Fourth Geneva
Convention states detainees ‘shall be protected especially against all acts of violence or
threats thereof and against insults and public curiosity’.
50 ICRC, Commentary: Co nvention (III) Relative to the Treatment of Prisoners of War 141, available
at: http://www.icrc.org/ihl.nsf/COM/375-590017 [last accessed 31 July 2010]. See a lso Rowe,
The Impact of Human Rights Law on Armed Forces (Cambridge: Cambridge Univers ity Press,
2006) at 1 1 4.
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be controlled in detention environments. Furthermore, the opportunity for sol-
dier p hotography wou ld b e reduced if detention facilities we re to strictly
comply with Geneva Convention aimsças dist inct from what occurred in the
Iraq war, where there was deliberate blurring of detention and interrogation,
and the roles of ‘prison staff’.
51
Signi ficantly, the legal attempt by t he US gov-
ernme nt t o prevent publication of photos depicting abusive treatment of de-
tainees in Iraq and Afghanistan (even where personal features had been
concealed) has be en reject ed as contrary to the history and preventative pur-
poses of the Geneva Conventions:
Article 13 of the Third Geneva Convention and Article 27 of the Fourth
Geneva Convention do not prohibit dissemination of images of detai nees
being abused when the images are redacted so as to protect the ide ntities
of the d etainees, at least in situation s where, as here, the purpose of the
dissemination is not itself to humiliate the detainees. ...Release of the
photographs is likely to further the purposes of the Geneva Conventions
by deterring future abuse of p risoners.
52
B. NewVisualisations of War
New technology has provided mil itary authorities and established media or-
ganis ationsçthe two main historical s ources of images of warç with opportu-
nities to expand, and further shape, the visual record of military conflicts.
Journalists now have an instantaneous ability to upload digital photos and
video from the battl efield by satellite to a potential worldwide audi ence.
Military personnel now also commonly supply television broadcasters wit h
dramatic, live video footage of battl efield scenes and events. Yet, in the wars in
Afghanis tan and Iraq, government controls have limited t he vis ual experience
of the publ ic:
What is most s tri king about traditional war coverage in the Anglo-
American news media is that the images are so relatively bloodless, and
seldom hint at the capacity of modern warfare machinery to inju re the
human body. In recent years, increasingly professiona l government
media management strategies seem to have strengthened the wartime
51 Se e, for example, Welch, ‘Detained in Occupied Iraq: De ciphering the Narratives for
Neocolonial Internment’, (2010) 12 Pun i shment & S o ci ety 123 (regarding the US military
detention in 2007 o f over 26,000 Iraqis in a network of large c amps).
52 American Civil Liberties Union v US D ep artment of Defense, 543 F.3d 59 (2d Ci r. 2008) (on appeal
to the US Supreme Court).
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dominance of official per spe ctives in the US and UK mainstream news
media.
53
The common practice of ‘embedded’ reporting is one such media ma nagement
strategy, whereby limited journalistic access to a war zone is permitted but
only on condition that certain images and narratives are (un)reported.
Intimidation of journalists by military per sonnel, and the confiscation of their
cameras in order to delete unwanted film footage, is anothe r tactic. The result
is that ‘desp ite the claims of ‘‘real time’’ and spontaneous coverage ...photo-
graphs from the conflicts in Afghanistan a nd Iraq have been characterized by
a narrow range of recurrent motifs and routinized scenarios’.
54
One notor ious
example from the 2003 Iraq war, the ‘Jessica Lynch Stor y’,
55
powerfully demon-
strates the co mbination of (apparently) privileged access to the imagery of
elite milita ry operations and media complicity:
[T]he Coalition Media Center (CMC) [is based] at the U.S. Central
Command Headquarters in Qatar. T his $1.5 million briefing operation,
with a futur istic, Holly wood-inspired set replete with plasma TV screens,
is housed in a remote warehouse hundred s of miles from the
battlefield ...[Journalist s] were presented with an edited five-minute
military video ^ shot through a night lens, produci ng green, grainy
images of silhouetted figures ^ detailing the Special Forces rescue of
Private Lynch. ...A single still image was taken from this operation and
circulated widely, showi ng Lynch lying on a stretcher aboard a U. S.
Special Forces helicopter, smiling grimly under a U.S. flag draped across
her chest.
56
One consequence of such media management is that hyper-controversy erupts
when radically alternative images of war (such as the Baha Mousa and Abu
Ghraib
57
photos) appearç representing a very different legal, political and
cultural reality.
Technological developments in actual weapons systems are another facto r
in the heightened visualisation of contemporary war. A standard feature of
military aircra ft, drones, missile and satellite surveillance syste ms is the facil-
ity to video record (often in real time) the detail s of military operations.
58
53 A nden-Papadopoulos,‘Body Horror on the Internet: US Soldiers Recording the War in Iraq and
Afghanistan’, (2009) 31 Media, Culture & Society 921 at 923. In contrast, the editorial position
of Al-Jaze era ^ the inter national news network w ith headquarters in the Arabian Gulf state
of Qatar ^ was to broadcast uncensored images from the Iraqi war zone.
54 Kennedy, ‘Securing Vision: Photography and US Foreign Policy’, (2008) 30 Media, Culture &
Societ y 279 at 283.
55 Jessica Lynch was allegedly wounded in a gun battle, captured and mistreated during her de-
tention in a n Iraqi hospital. Subsequently, it was revealed that she had received the best avail-
able medic al t reatment from Iraqi medical staff from injuries diagnosed as resulting from a
serious road traffic accident.
56 Campbell,‘Representing Contemporary War’, (2003) 17 Ethics & I nternational Affairs 99 at 1 04.
57 S e e i n f ra n. 76.
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While this vid eo footage may b e u sed for intel ligence, training and propaganda
purposes, it al so has potential legal significanceçif acknowledged and made
availableçfor the investigation a nd prosecution of a ny alleged war crimes.
If unauthorised disclosure of military video occurs, it i s likely to have an
enha ncedça nd perhaps uncontrollableçimpact. One such exampl e is the
leaking of the audio and visual record of the del iberate k illing of Iraqi civilians
in Baghdad in 2007 by US forces:
Private Bradley Manning, who had a top-secret sec urity clearance, has
been held in military custody in Kuwait since his arrest in Iraq in May
over the video, which caused great embarrassme nt to the US military es-
tablishment. It showed an air strike that killed a dozen people, including
two Iraqis working for Reuters news agency. The air crew is heard falsely
claiming t o have encountered a firefight in Baghdad and then laughing
at the dead. WikiLeaks gave the video the title Collateral Murder.
59
Use o f war imagery is not confined to state actors; in the conflict s in
Afghanis tan and Iraq, groups lin ked to al-Qaeda have produc ed and distributed
(via DVD and Internet for mats) vi deos of mil itary vehicle bombings, ‘martyr-
dom’attacks and, most controversially, the detention a nd beheadings of c ivilian
and military ho stages.
60
The concern with war propaganda, and the use of
new media technologies, is now shared by all sides in war.
Of particular interest to my a nalysis is the incorporation of new media
technology into operations by soldiers to ide ntify, arrest and detain individ-
uals for questioning within a war zone. The ability to be a ‘soldi er photog-
rapher’ is now greatly expanded from previous eras be caus e of the
technological abilities of military e quip ment such as helmet-cameras and
night-vision goggles, as well as the presence of mobile camera-phones and
compact digital vide o reco rder s. It has also been argued that new forms of
technological visualisation of ‘targets’ exac erbate a proces s of dehumanisation
on the battlefield (reinforced by the immediate hooding of detainees)çwhich
may continue to operate even in the ostensibly safer space of the military
detention facility.
61
A revealing insider-per spective on counter-insurgency practices, and the
new dominance of video technology, is provided by journa li st Mark Urban’s
58 Se e Beard, ‘Law and War in the Virtual Era’, (2009) 103 American Journal of International Law
409.
59 McGreal, ‘US Private Bradley Manning Charged with Leaking Iraq Killings Video’, Guardian,
6July2010.
60 See Brahimi,‘Terroris t Beheadings: Politics and Reciprocity’, in Scheipers (ed.), Prisoners inWar
(Oxford: Oxford Universit y Press, 2010) 297.
61 Se e Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 28
May 2010, A/HRC/14/24/Add.6 at para. 84 (rega rding the risk of a ‘Playstation’ me ntality to
killing s because of the distancing effect of technologyçcomputer screens and remote audio--
feedçused by the operators of drones).
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book, Task Force Black; a detailed acc ount of UK Special Air Service (SAS) s pe-
cial forces in I raq b etween 2003 and 2009. In one operation, ‘[v]ideo shot by
troop s shows the moments after t hey burst in on t he hostages’ and, in another
operation, soldiers watched ‘the events unfold on Kill TV back at [the Joint
Operations Centre] ...[via] the night-vision image captured by the a ircraft
orbiting above’.
62
Urban also confirms that in order to avoid the presence of
Closed Circuit Television (CCTV) su rveillance (and potential visits by
International Committee of the Red Cross delegates
63
) in known detention
facilities, one US strategy was to construct secret ‘black prisons’ or, what were
known as Temporary Screening Facilities, f or the explicit purpose of torture.
64
Another strategy, used by both US and UK special forces personnel, was to
take advantage of the ‘time lag’ between arrest and formal detention: as
Urban puts it, ‘the violent circumstances of many takedowns produced oppor-
tunities for their operators to question the pris oner before putting him on a
helicopter ...’.
65
Thus, one effect of the potential legal scrutiny of the detention
facility on a UK military base in a war zoneçthat is, extra-territorial jurisdic-
tionçis that detainee abuse is being transferred to other sites off-base.
66
Moreover, the new pred ominance of combined US and UK special forces oper-
ations, as i n Iraq and Afghanistan, and the extreme covert nature of these
elite military cultures, mea ns that the risk of abuse of so-called ‘high value’
detainees has grownçand that any visual record of human rights violations,
if one is kept, is unlikely ever to reach the public domain.
67
62 Urban, Task Force Black: The Explosive True Story of the SAS and the Secret War in Iraq (London:
Little, Brown, 2010) at 130 and 143.
63 Under the four 1949 Geneva Conventions and the two Additional Protocols of 1977, the ICRC
has a mandate to visit and register detainees, and to monito r their treatment.
64 I b i d . at 67, 131 a n d 149. S e e a l s o Getting Away with Torture? Command Responsibility for the U.S.
Abuse of Detainees (New York: Human Rights Watch, 2005).
65 Ibid. at 131. See also HM Government, Consolidated Guidance to Intell igence Officers an d Service
Personnel on the Detention and I nterviewing of Detainee s Overseas, and on the Passing and
Receipt of Intelligence Relating to Detainees (July 2010), available at: http://download.cabinetof-
fice.gov.uk/intelligence/consolidated-guidance-io sp.pdf [last accessed 31 July 2010]. This
document (at 13) regulates UK military personnel involvement with detainees held overseas
by t hird parties and states that hooding may constitute cruel, inhuman or degrading treat-
ment o r punishmentçexcept where it does not ‘pose a risk to the detainee’s physical or
mental health an d is necessary for security reasons during arrest or transit’.
66 See supra n. 1 6; and R(Evans) v Secretary of State for the Defence [2010] EWHC 1445 (Admin)
(regarding the risk of torture following the transfer of detainees f rom British custody to
specific Afghan detention facilities).
67 Se e Davies, ‘Afghanistan War Logs: Task Force 373 ^ Special Forces Hunting Top Taliban’,
Guardian,25July2010.SeealsoThe Torture Report, supra n. 22 at chap. 3, for an account of
the ACLU Freedom of Information Act litigation in relation to records on detainees held in
US custody abroadçand the destruction, despite court orders, of ‘film of hundreds of hours
of Washington-directed torture’.
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C. 2003 Iraq War: Soldiers Onl ine
At the same time, however, the personal photos of individual soldiers have
become the most expa nsive, v ividçand controversialçsource of war imagery.
Mobile phones, digital cameras, laptops, email, social networking websites,
video-sharing sites and blogs are now common features of soldier life in for-
eign m ilitary operations. The consequences can be dramatic, as the following
accounts of U K and US military behaviour in Iraq attest:
Soldiers ...take pictu res like crazy .... They take pictures because they’re
bored or want souvenirs. They take pictures of people they arrest (an
abrogation of the Geneva Conventions), of fighters they kill (ditto), of
bodies they desecrate (a war crime). They email them home or send
them with photos of their wives to a porno website or string them
togethe r and add sound to make commemorative v ideos.
68
When we were out there, we had like a marke t person that ca me on and
he sold loads of DVDs ^ he sold a lot of DVDs of p eople being killed and
peopl e were ta king pictures all the time. People were even getting their
pictures developed in Iraq so they didn’t have to take them over to
England and get them developed. It was ^ everybody was taking pictures
of everyth ing ...
69
Record ing images has become a central part of soldiers’ immediate experi-
ence çand, later, the ir memoryçof war. However, what is real ly ne w here is
not the increased versatility o f the digital camera and the desire to create a
visua l record; it i s the ability instantaneously to view and share any such re-
cords with colleagues and, more particularly, with a potential global virtual
audience.
70
The personal soldier perspective, historically confined to the war
zone, can now be instantly transmitted out of the war zone. A study of US sol-
dier photography emphasises that sold ie rs have diverse reasons for d ocument-
ing their experiences visually and diss eminat ing those images. The photos
they take blend ‘the genres of institutional, tourist ic, and war photography
into a new type of solider phot ography.’
71
Communicating with fami ly and
friends back home; keepi ng up morale; show ing the mundane life and frat-style
humour of barracks; behaving li ke a tourist; and providing alternative imagery
of the ‘real war’are all common motivations for taking and sharing images.
In a study of the explicit ‘blood and guts’ imagery of Iraqi war dead posted
online on one controversial website, Kari Anden-Papadopou los concludes that
68 Wy pijewski, ‘Judgment Days: Lessons from the Abu Ghraib Courts-Martial’, February 2006,
Harpe r’s Magaz i n e 39 at 43.
69 Lee BMI18/126/8-16. Private Lee was a British soldier serving in the Iraq war.
70 Se e, for example, ‘IDF soldier posts images of blindfolded Palestinians on Facebook, from ‘‘best
time of my life’’ ’, Haaretz, 16 August 2010.
71 Kennedy, ‘Soldier Photography: Visualising the War in Iraq’, (2009) 35 Review of International
Stud i es 817 at 819.
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the com mun icative function of these atrocity photog raphs appeared to be
threefold.
72
First, it was an attempt to share the gruesome reality of war with
other soldiers, both in terms of dehumanisation of the dead ‘enemy’ and reliv-
ing the personal trauma of either killing or witnessing killing. In light of the
lethal risks of war, keeping a record (even if horrific) is for s oldiers a proof of
personal survival. Secondly, new online technology provided an ins ider mili-
tary community with access to an outside public fo rum where explicit pic tures
of violent conflict, and accompanying soldier commentary, could throw ‘the
discrepancy between military and civilian perception of war into sharp
reli ef.’
73
And, thirdly, the photographs were intended to intimidate the e nemy
as violent spectacle and a form of propaganda.
74
Although graphic and offen-
sive to many, it would be simplis tic to conclud e that the ‘new digital generation’
of soldiers photograph and circ ulate imagery o f the dead only for pathological
or sadistic reasons. In any event, consideration of this issue cannot be confined
to ind ividual soldiers. On two occasions the US military command in Iraq
authorised the publication of explicit images of the war d ead: play ing a video
of the badly wounded sons of Saddam Hu sse in, and displaying an enlarged
photograph of the head of Abu Mus ab al-Zarqawi, at a press conference. Then
Secretary of Defense Donald Rumsfeld defended the former action, saying that
the deceased we re ‘two particularly bad characters, and that it’s important for
the Iraqi people to see them, to know they’re gone, to know they’re dead’.
75
Photographs of detainees insi de detention facilities in a war zone raise dif-
ferent considerations. The most notorious collection of such photos from the
Iraq war is from Abu Ghraibçdigital video s and photo s of torture and abuse,
created by US reservist soldiers who guarded the detainees inside the inte rro-
gation block of the prison. The re is a substantial literature on different aspec ts
of the scandalçcovering legal, racial, sexual, political and cultural dimen-
sions
76
çbut my interest is in two particular issues. The first concerns the
nature of photograph s, specifically the role of interpretation in deciphering
72 Supra n. 53. The website (now closed down) contained sexually explicit images, which US
troops were allowed free access to i f they posted an authentic photograph proving they
were serving overseas. Only a minority of the photos submitted were graphic battlefield
images; the majority were landscape and military equipment i mages.
73 I b i d. a t 933.
74 The US Defense Department launched its own YouTube channel in 2007 called MNFIRAQ
(Multi-National Force ^ Iraq) t o provide an alternative, sanitised propaganda footage.
Kennedy, supra n. 71 at 830, states that the US military has no plans to ban the possess ion of
ca mera phones and digital cameras, but it has imp osed restrictions on soldier use of the
Internet.
75 Transcript of 24 July 2003, available at: http://www.defense.gov/t ranscripts/transcript
.aspx?transcriptid¼2894 [last accessed 31 July 2010].
76 Se e, for example, Human Rights Watch, supra n. 64; Puar, ‘Abu Ghraib: Arguing Against
Exceptionalism’, (2004) 30 Femini st Studi es 522; Danner, Torture and Truth: America, Abu
Ghraib and the War on Terror (New York: New York Review of Books, 2004); Mestrovic, The
Trials of Abu Ghraib: An Expert Witness Account of Shame and Honour (Boulde r: Paradigm
Publishers, 2007); and Brown, The Culture of Punishment: Prison, Society and S pectacle
(New York: New York University Press, 2009).
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their meaning. No photograph can be said to have one intrinsic, guaranteed
mean ing: other interpretations are always possible depe nding on our know-
ledge, and assumptions, about what is inçor left outçof the frame. The con-
testation over the Abu Ghraib i mages stems precisely from this: di d the photos
represent the activities of, and enjoyment of, certain individuals engaged in
(sexualised and racialised) practices associated with the abusiveness, and
tedium, of US military and penal c ultures? Or, did the images represent the
central role of such ‘s oft ening up’ practices in a US gover nment-authorise d tor-
ture program me designed to extract intelligence from detainees in Iraq and
elsewhere? Was it possible to inte rpret some of the photos as proof of both
these meanings? Also, how should one d ecipher the mot ivation of the indivi d-
ual soldier photographer in Abu Ghraib: as a person engaged in further voy-
euristic excess (and with an inte ntion to share the digital photos of naked
bodies)? Or, as t he creator of an official visual record of the agony and humili-
ation of the torture victim (with the i ntention of usi ng t he mos t ‘shami ng’
images as blackmail for detainee co-operation)?
77
Thes e photographs, in other
words, cannot tell the whole story: ‘[t]hey only provide evidenc e of stories,
and evidence is mute; it demands investigation and interpretation’.
78
And, as
Judith Butler point s out, i nvestigation a nd interpretation are not inevitable
either: ‘[o]ne might expect that the photo would at once alert us to the abomin-
able human suffering in the scene, and yet it has no magic moral age ncy of
this kind’.
79
The second point concerns official responses and lega l contexts. Consider
two infamous images from the Iraq war: both are photos of co rpses, one is
Baha Mousa and the other is Manadel al-Jamadi, one of the de taine es in Abu
Ghraib. Both are visual evidence of war c rimes. However, only the image of
Mr Mousa continues to generate an official search for accou ntability both in re-
lation to the immediate c ircumstances of his violent death (and the attempted
cover-up)çand the wider legal and political factors which contributed to the
abuse, t or ture and deaths of so me I raqi detainees.
80
The Abu Ghraib photo of
Mr al-Jamadiçlying in an unzipped body bag with a battered face while a
female soldier, Sabrina Harman, poses over him with a smile and a thumbs-up
signçdid not generate this sort of response. The cour t-martial of Sabrina
Harman for maltreatment o f detainees (including posing in photographs) d e-
liberately excluded this photo from the evidence.
81
In spite of global access to
the digital image of a dead detainee, the presence of numerous witnesses at
77 For further analysis o f the soldier photographers involved, including a potential
whistle-blowing motive, see Gourevitch and Morris, Standard O perati ng Procedure: A War
Story (London: Picador, 2008); a nd Morris, Standard Operating Procedure (Sony Pictures
Classics DVD, 2008).
78 Ibid. at 148.
79 Butler, Frames of War:When is Life Grievable (London: Verso, 2009) at 91.
80 Supra n. 9 and n. 24.
81 Mestrovic, supra n. 76 at 31^32.
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the location of his death, the existence of other photos (taken by Harman) of
injuries t o his body and an autopsy report confirming a death in US military
custodyçthis particular image of a war crime was deemed irrelevant for offi-
cial purposes. Why? Because Mr al-Jamad i died during a Central Intelligence
Agenc y (CIA) interrogation in a shower room in Abu Ghraibçthe result of
an officially sa nctioned torture programme on Iraqi detainees.
82
4. Visual Evidence and the Mou sa Inquiry
Interpretation of photographs i s unpredictable. So are the consequences that
may follow the publication of a photograph, especially where the image depicts
violence or suffering. Take the example of the Abu Ghraib photos: while visu-
ally opening up US practices of detainee torture to a worldw ide audience,
these images also worked to close down public and officia l scrutiny.
83
This
occurred bec ause the most se nsational imagesçfor example, smiling soldiers
posing over pyrami ds of naked bodiesçdeflected attention onto the individual
perpetrators in the photos, and away from the co ntext in which such practices
originated, be came institutionalised and were openly photographed. Media
coverage was important in this regard as a selective use of photosçfor ex-
ample, Lynndie England holding a naked detainee on a leashçrefl ected the
Bush Admi nistration’s emphasis on isolated acts of mockery, sadism and
sexual perversion.
84
The legal process did the same: faced with such p hoto-
graphic evidence at the courts-martial of the low-ranking soldiers, the judge
ruled that the abu se of t he naked detainees was t he relevant issue, but the
‘nudity thing’çthat is, why all the detainees were naked in a US military inter-
rogation blockçwas ‘irrelevant’.
85
By i nterpreting the visual evidence in this
wayçfocussing only on ‘bad apple’soldiers and their pathologic al and criminal
actsçthe images did not contribute towards exposing the systematic sever ity
and illegality of US interrogation policy: in fact, they worked to sideline it.
The Mousa Inquiry mandates a different proce ss of investigation. It is forge d
from European human rights law and one of its primary purposes is to estab-
lish accountability on behalf of the individual vict im of se riou s human rights
violations. Where there has been a controversial death caused directly or
82 For an account of his death, and the removal of his body from the prison, see Gourevitch and
Morris, supra n. 77 at 172^184.
83 Se e generally, Danner, supra n. 76.
84 US milita ry investigative reports into Abu Ghraib concentrated on the actions of ‘bad apple’
soldiers: see, for example, Gree nberg and Dratel, supra n. 23 at 448, 909 and 1007. Cf Senate
Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody, 12 November
2008, available at: htt p://levin.senate.gov/newsroom/release.cfm?id¼311783 (regarding the
involvement of senior military and civilian officials in developing US interrogation policy)
[last accessed 31 July 2010].
85 Colonel James Pohl, cited by Mestrov ic, supra n. 76 at 32.
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indirectly by UK state actors, and othe r mechanisms (such as a court-martial)
have failed, Article 2 of the ECHR requires the state to conduct ‘an effective
public investigation by an independent o fficial body’ into the circumstances of
the death.
86
The perspectives and interests of the victim are formally repre-
sented in the process: the ‘relatives of the deceased must be able to play an ap-
propriate part in it’.
87
What this means in relation to visual evidence before the Mousa Inquiry is
that the images cannot be interpreted just as a story of ‘bad apple’ soldiers.
Soldier photography provides crucial evidence of the individual soldier(s)
involved in the abuse and death of Mr Mousa, but the Inquiry is require d to
focus both on the actual perpetrators of the violenc eça nd the extent to
which systemat ic polici es and failings in military, political and lega l circles
were connected to the death. A central question is what significance the
visua l evidence will have in the Inquiry findings. In particular, how will the
visua li sation of the suffering of Mr Mousaçin the one-minute video that
shows him undergoing ‘conditioning’çbe interpret ed? Can one expect that a
claim of ‘torture’ will be recognis ed as such when it is made aga inst state
actor s in a legal forum? Moreover, what are the risks if t he video (and other
visua l evide nce) is used to support an official Inquiry finding that Mr Mousa
was not to rtured?
88
The first point to note is that the Mousa video provides the Inqui ry with the
location, date and time of the events; a timeline can be established because
the camera analysis confir ms that ‘the footage was shot on 14 September at
08:02:17’ andçbe cause of the difference i n time zonesçthe actual time in
Basra would be either 11:02:17 or 12:02:17.
89
Moreover, the visual images of
the physical environment challenge assertions that the duration and ferocity
of the abuse was un known to others not in the ‘Temporary Detention Facility’
(TDF): ‘the windows were open, meaning noise could be heard outside ...the
ent rance to the accommodation block.’
90
Secondly, law yers for the vict ims
have firmly placed the video f ootage in a wider context of abusive solider pho-
tography, and insiste d upon one part icular interpretation of the visual frames:
One means of cont rolling and de-humanising the enemy-other in one’s
own mind, was to photograph hi m. The v ideo ...was such an act: a com-
memoration of torture ^ with Payne occasionally look ing straight into
86 R(M i ddlet on) v West Som e rset C oroner [2004] UKHL 10; [2004] 2 AC 182.
87 R(Smith) v Secretary of Sta te for Defe nce, supra n.17 at para. 64, citing Middleton, ibid.; and R(L)
v Secretary o f State for Justice, supra n. 17.
88 Space does not per mit a discussion of the interpretation of autopsy photographs.Whe ther the
photographed injuries were visible to mi litary medics at the time of Mr Mousa’s attempted re-
suscitation or not; and their significance in determining the nature and level of violence in-
flicted, and the ultimate cause of his death, are all heavily contested issues before the Inquiry.
89 PIL Closing Sub002225 at para. 126.
90 PIL Closing Sub002399 at para. 453.
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the camera meaningfully. The film of the TDF itself apparently acquired
the title amongst some soldiers as the Hous e of Pa i n.
91
The key point of dispute is how the violence represented in the video should be
characterised.
92
This is o f crucial significance fo r t he wider contestation over
British Army practices of ‘conditioning’ and alleged torture. Will the images be
interpreted by the Inquiry giving greater weight to the perspective of the vic-
tims (Mr Mousa and the other TDF detainees)? O ne thing that is clear is that
there is no one s oldier per spective on the video evidence. For example,
ex-Corporal Payne admitted to the I nquiry that his behaviour in the video
was ‘appa lling’and ‘inhuman’.
93
In contrast, Majo r Peebles, a commanding offi-
cer in Payne’s regiment, believed that the practices shown were not ‘going
over the top’ because there was ‘no physical harm or ass aults’.
94
Other soldiers
testified that the hooding and forced stress positions shown in the vid eo we re
intended to maintain ‘the shock of capture’; far from being arbitrary, it was
‘standard operati ng procedure’ taught in training.
95
In some of the Inquiry evidence, it i s apparent that the interpretive debate
on the visual images is being shaped by partic ular legal knowledge. The
Treasury Solicitors, who are representi ng senior military and governmental
actor s, have accused the victims’ lawyers of seeking ‘to blur the distinction be-
twee n conditioning and conventional violence’
96
çand have insiste d that
‘‘‘[t]orture’’ today constitutes the wo rst of mistreatment, the worst of cruelty
at the hands of the state.’
97
The MoD’s approach is to deny condoning an illegal
interrogation policy. Thus, while ack nowledging that ‘gratuitous violence’ was
inflicted on the detainees over a leng thy period, the MoD strongly disputes
that a mi litary ‘culture of casual violence’ existed in Iraq.
98
It admits that hood-
ing for interrogation purpos es is illegal and that ‘br utality and inhumanity’
were inflicted on Mr Mousa;
99
it argues, however, that the motives for the
91 PIL Closing Sub 002622 at para. 223. Only Inquiry personnel can judge this gaze because
Corporal Payne’s face is redacted in the video released to the public. PIL also make reference
to the other examples of photos found amongst soldiers in the regiment, including images of
dead bodies, hooded prisoners and prisoners in forced positions. One soldier, Private
Mackenzie, created fake photos, representing the abuse of Iraqi detainees, which he sold to
the Da ily Mirror in May 2004.
92 Sontag, On Phot ography (New York: Anchor Books, 1990), argue s that a photograph is more
powe rful than the visual flow of a video because the arrest of time in the photograph provides
the space for contemplation of the image. O n the other hand, a video may provide context
that a photog raph lacks.
93 Payne B M I32/132/1-9.
94 Peebles BMI40/203/14-204/15.
95 Se e, for example, Crowcroft BMI22/109/14; and Payne Closing Sub0000019 at para. 3.39.
96 Treasury Solicito r’s Reply Sub002812 at para. 57.
97 Treasury Solicitor’s Closing Sub001258 at para. 43. In this respect, the relatively ‘moderate’
viol ence shown in the Mousa video could act to deflect public attention away from the
much more brutal violence that occurred later and elsewhere.
98 MoD Reply Sub002734 at para. 25.
99 MoD Closing Sub001017 at para. 2.
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violence were ‘mi splaced revenge’, ‘sheer thuggery’, ‘sadism’ and ‘loss of control’
in a handful of soldiers
10 0
çin other words, none of the violence implemented,
or was influenced by, British Army inte rrogation policy or practices. In con-
trast, the victims’ lawyers interpret the evidence in the video to substantiate
two key points: first, that it is the perspective of the victims, not the perpetra-
tors, which must be paramount in deciphering the violence:
From the point of view of the recipient of the conduct seen on that video,
would it not feel like a beating? ...Moreover, from the point of vie w of
the observer, one must take into account that this is a handcuffed and
hooded prisoner, rendered partic ularly vulnerable by h is loss of liberty,
sight and free dom of movement, not knowing what will happen
next. ...But in terms of the experience of pain, ...these [assaults]
mould into one.
101
Their second point is that the video provi des us with a visual snapshot of the
early stages of an incident of tortureçwhich ended with the death of
Mr Mous a and injuries to the other d etainees:
[T]he treatment of the detainees over the [36 hour] period did amount to
torture in the sense of constituting severe pain and suffering intention-
ally carrie d out by state agents for the purposes of obtaining information
and inf licting punishment ...
102
They insist that the Inqui ry ‘should call what happened to the v ictims what it
is’.
103
It remains to be seen whether the In quiry will accept this interp retation
and, in particular, what significance will be placed on the video footage in
light of the competing accounts of applicable legal standards and the conflicts
between witness-testimony.
5. Conclusion
In this article, my focus has been on soldi er photography, specifically the use of
digital cameras in dete ntion facilities located in a war zone. Where images of
serious huma n rights violations in s uch environments are created and dis trib-
ute d, the impact may be significant in cultural, political and legal terms. But,
as with the images of Baha Mousa (and the Abu G hraib photos), different inter-
pretations of what is meant by ‘abuse’ or ‘torture’, and who should be held to
100 MoD Closing Sub001026 at para. 2. The MoD admitted legal liability and paid compensation of
»2.83 mil lion to the families of Mr Mousa and the nine other detainees in July 2008.
1 0 1 PIL Closing Sub002220 at para. 1 1 7 .
102 PIL Clo sing Sub002390 at para. 427.
103 I b i d.
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account, always come into play. The camera doe s not prov ide an unchallenge-
able record of what happened. We have seen that a visual image, on its own,
does not have the powe r or ‘magic moral agency’ to dictate a particular re-
sponse. Photos of atrocities have always been circulated in ce rtain environ-
mentsçbeing enjoyed, shared, ignoredçwithout any accompanying outrage
or sanction. Moreover, in lega l contexts, this visual evidence may have to
enter into a competition with other types of evidence which advance a differ-
ent version of truth. Images of suffering, in othe r words, have the potential to
work in different directions.
It is for this reason that I have highlighted the importa nce of the political
and legal contexts in which a particular v isua l representation is given a specific
mean ing
10 4
çand the d istinctive nature of the Mousa Inquiry. Looking ahead,
the official Inquiry report will provide one means of assessing the role, and sig-
nificance, of soldier p hotography from a human rights perspective. But a
wider assessment is also needed. One matter that needs to be explored is the
extent to which the new ECHR-driven inquiry differs from previous official ef-
forts to investigate controversial actions by armed services personnel (especial-
ly special forces).
105
Often, where images of military violence have been in
issue, the power of the official interpretation of events has prevailedçfor
example, the 30 January 1972 (‘Bloody Sunday’) killings of 13 civilians by
the British Army in Northern Ireland was photographed, filmed a nd
audio-recorded by the international me dia as it happened, yet this visual
record had no influence on the initial judicial inquiry.
106
The Mousa Inquiry,
the future Al-Sweady Inquiry and a potential Al Zaki Mousa in quiry
107
provide
important opportunities to det ermine the merits of new accountability
mechan is ms.
Another issue is the significance of the extension of ECHR
extra-territoriality to the space of the military prison in a war zone. This exten-
sion was of paramount importance in relat ion to the Iraq war because US/UK
military intervention quickly descended into a war of occupation and
104 David Garland has also argue d that the image of a prison inmate works against sympathetic
public engagement wit h their welfare; the assumption being one of ‘supposed guilt’ because
they are visualised in a prison. Arg uably, this effect i s enha nced in a war zone with ho oded
detainee s. See Garland, ‘Postcards from the Edge: Photographs of Torture in Abu Ghraib and
the Americ an South’, in Behr et al. (eds), Kriminalita« ts-Geschichten (Berli n: Lit Verlag, 2006)
25 at 30.
105 See, for example, Anthony and Mageean, ‘Habits of Mind and ‘‘Truth Telling’’: Article 2 ECHR
in Post-Conflict Northern Ireland’, in Morison et al. (eds), Judges, Transition and Human Rights
(Oxford: Oxford University Press, 2007) 181; and Jamieson and McEvoy, ‘State Crime by Proxy
and Juridical Other ing’, (2005) 45 British Journal of Criminology 504.
106 Contrast the 1972 Widgery Report with the 2010 Report of the Bloody Sun day Inquiry, chaired
by Lord Saville, available at: http://www.bloody-sunday-inquiry.org/ [last access ed 31 July
2010].
107 S up ra n. 24.
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counter-insurgency.
108
Mass detention of Iraqi civilians led to a foc us on the in-
terior lif e of hit herto unknow n spaces such as the TDF and the Temporary
Internment Facility, especially as the treatment of ‘detainees’ had bee n raised
as a major human rights conc ern from t he start of the con flict.
109
However,
there are other spaces where detainee abuse or torture can occurçoff-base lo-
cation s or when inside milita ry vehicles on patrolçwhich are not within UK
jurisdiction.
110
In any event, military authorities, now acutely aware of the
power of new media technologies to expose and embarras s, may en hance
their efforts to control and censor the vis ual field of war by clo sing down sol-
dier photography. Furthermore, while the general desire to record and share
personal experiences may continue to grow, can one expect (after the various
‘abuse photo’ scandals and a process like the Mousa Inquiry) that British
Army personnel would risk posing with the same sense of impunity in any
future video or photos? Soldi er photography as a potential human rights
resource may, therefore, be limited.
A final issue to be addressed is the use of photographs of sufferi ng and vic-
timhood. It must be recognised that a visual focus on the s uffering of the
victim may, paradoxically, limit our understanding of the perpetrator of the vio-
lence. Of course, this opens up definitional questions about the meani ng of per-
petrator as some may present themselves as ‘victims’ (for example, of war, of
superior orders or of peer pressure). The a nswer to such question s may also
result in different consequences in relation to how law views the credibility
and motivation of the ‘witness’ photographer.
111
In the Mousa video, Cor poral
Payne’s face is blanked out so we are somewhat constrained in our i nterpret-
ation of his actions and emotions. In these images, should we see a racist and
violent bully, or a soldier playing his allotte d par t in ‘conditioning’ o f detainees?
Will he be come more humanised in public opinion if the official Inquiry
repor t co mmends his change of evidence, and his revelation of intentional
mass beatings of Mr Mousa? The perpetrator persp ective is important because
we need to engage with, and try to und erstand, the pressures, conditions and
events which lead soldiers to act in this way. Tort ure in a war zone occurs
108 See Urban, supra n. 62; and, more generally, Cockburn, The O ccup a tion: War an d Resistance in
Iraq (London: Verso, 2007); and Chandrasekaran, Imperial Life in the Emerald City: I nside
Baghdad’s Green Zone (London: Bloomsbury, 2006).
109 The ICRC and Amnesty International complained about the condition of detainees from
March 2003 onwards: see MOD Sub012243 at MOD012256; a nd ICRC, Report of the
Internatio nal Committ ee of the Red Cross (ICRC) on the Treatment by the Coalition Forces of
Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq during Arrest,
Internment an d Interrogation (February 2004). The involvement of UK special forces in US mili-
tary operations, and their handi ng over of detainees to particular US-controlled sites, was
also apparently the subject of major controversy: see Urban, supra n. 62 at 72^73.
110 But see the judgments of Brooke LJ and Sedley LJ in the Court of Appeal in Al-Skeini, supra n.
16, who were supportive of the view that jurisdiction could extend beyond the walls of the
military prison.
111 See Fraser, supra n. 47.
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because of the actionçor inactionçof many individuals (including mil itary
lawyers), all of whom may appear ‘normal’ people.
112
Atrocity photographs, as
discussed earlier, are both sho cking and unremarkable precisely because they
unashamedly represent this ‘normality’ in visua l form.
As to the victims, on t he one hand, the image of the abused or tortured de-
tainee is humanising because it creates the potential for recognition and em-
pathy. On the other hand, endless re-publication of the image would be a
further dehumanisation: for example, t he Abu Ghraib me dia coverage shows
naked, terri fied, humiliated individuals in pain and distress. Whe re faces are
blanke d out t o protect privacy, or bodily features cropped by picture editors,
only a disembodied representation remainsçin other words, ‘photos of people
who are for the most part faceless and nameless’.
113
The face of Baha Mousa
is not revealed in the video because he is hooded; we only ‘know’ him after
his death, as a vict im, be cause the autopsy photograph is the most widely cir-
culated media representation of him.
114
The dilemma, therefore, is knowing
how to e xpose the human rights violation, and generate the appropriate re-
sponses, without fu rther violating the rights of the victims or thei r relatives.
When that image of suffering becomes entangled in a post-Iraq war introspec-
tion, of wh ich the Mousa Inquiry is a partçor the image is an archived
graphic symbol on newspaper websitesçde termining what is and is not
acceptable is made more difficult. Finally, new digital technology provides the
capacity to record, copy, publicise and consume visual imagery in numerous
ways, but how wil l this ability a ffe ct how we remember c ontemp orary atroci-
ties?
115
Photographic representations of the Holocaust, for example, belong in
no special category, when it comes to i nterpretations of their meaning, their
contemporary purpose or the limit s of appropriate u se of the images.
116
There
are also no controls on who ca n create, or access, a website displaying an atro-
city photograph.
117
After the Mousa Inquiry concludes, what will happen to
the images of Mr Mous a?
112 See generally, Rejali, Torture and Democracy (Pr inceton: Princeton University Press, 2009).
113 Butle r, supra n. 79 at 94.
114 There is also a photo of Baha Mousa, his wife and two sons i n the public domain, but this is
used less frequently in television and newspaper coverage.
115 See also Cohen, ‘Government Responses to Human Rights Reports: Claims, D enials and
Counterclaims’, (1996) 18 Hu man R ights Quarte rly 517.
116 Zelizer, supra n. 8. See also, Valverde, Law and Order: I mages, Mean ings, Myths (Abingdon:
Routledge-Cavendish, 2006) at 153.
117 S t r u k, s up r a n . 43 a t 209.
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