THE Army’s prosecuting authority was accused yesterday of making the former commanding officer of The Queen’s Lancashire Regiment a scapegoat over the alleged fatal beating of an Iraqi detainee.

Colonel Jorge Mendonca, who commanded the regiment in southern Iraq during an “intensely dangerous and violent” six-month tour in 2003, has been charged with negligence, allegedly for failing to ensure that Baha Mousa, the detainee in British custody in Basra, was treated properly in accordance with the Geneva Convention.

Three of his soldiers have been charged with war crimes under the International Criminal Court Act 2001, although the case will be heard in a court martial, not at the international court in The Hague.

Former commanding officers of The Queen’s Lancashire Regiment said that if Colonel Mendonca was being blamed for the conduct of some of his men, “then why should responsibility not go even higher up the chain of command, to the brigade commander, the divisional commander, the Chief of the General Staff, the Secretary of State for Defence, the Prime Minister?”

They compared the decision to prosecute Colonel Mendonca to the treatment of Colonel David Paterson, the former commanding officer of the 1st Battalion The Royal Regiment of Fusiliers, three of whose men were found guilty in January of mistreating Iraqi looters in their custody at Camp Bread Basket in southern Iraq.

Colonel Paterson was questioned by army investigators but no charges were preferred. Defence counsel acting for the three soldiers asked why senior commanders had not been charged or disciplined.

One source in The Queen’s Lancashire Regiment said that it was only because of the controversy over the Fusiliers’ case that Colonel Mendonca and 13 other officers were “suddenly” reinterrogated over the Baha Mousa case.

Army sources said there had been “nothing political” in the decision to charge Colonel Mendonca and that the Army Prosecuting Authority’s judgment was independent. They confirmed that Colonel Paterson had been questioned but it had been judged that there was no ground for charging him.

Brigadier Geoffrey Sheldon, Colonel of The Queen’s Lancashire Regiment, said of the decision to charge Colonel Mendonca: “It was Colonel Mendonca who, as soon as he learnt of Mr Mousa’s death, initiated the formal inquiry that has now resulted in these charges.”

On the war crimes charges against Corporal Donald Payne, Lance Corporal Wayne Crowcroft and Private Darren Fallon, Brigadier Sheldon said: “While there can never be justification for what is alleged to have occurred, it must not be forgotten that Basra in September 2003 was an intensely dangerous and violent city.”

Admiral Lord Boyce and General Lord Guthrie of Craigiebank, two of the six former chiefs of defence staff who criticised the Government in a House of Lords debate last week over the “unacceptable” risks of British soldiers being summoned before the International Criminal Court (ICC), said yesterday that if there was wrongdoing in Basra, then prosecution was the right course. However, Lord Boyce said that he remained concerned about the future use of the ICC. “We have been reassured by John Reid (the Defence Secretary) that soldiers cannot be summoned to the international court, but I am worried about creeping jurisdiction of the court in The Hague.” He cited the European Court of Human Rights as an “obvious” example of “creeping jurisdiction”. It was established after the Second World War in view of the Nazi abuses. “Yet now it’s used for issues such as headscarves in schools,” he said.

• Lance Corporal James Cooke, of the Irish Guards, was named as the fourth guardsman to be charged with the manslaughter of Ahmed Kareem, the second of the two cases announced by Lord Goldsmith, QC, the Attorney-General, on Tuesday.

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