17 Nov War Crimes, Cover-ups, and Britain’s Special Forces: Notes from the Afghanistan Inquiry
The header image depicts Fazel Mohammed (18 years), Mohammed Tayeb (14 years), Mohammed Ibrahim (55 years), Hussain Uzbakza (24 years). These photos have been provided for media use by Leigh Day.
[Elizabeth Brown is a doctoral researcher at King’s College London’s Department of War Studies, where she studies British accountability processes following allegations of war crimes in Iraq and Afghanistan. She is also coordinator of King’s War Crimes Research Group.]
On Monday the 9th of October 2023, the United Kingdom’s Independent Inquiry Relating to Afghanistan held its first substantive public hearings amongst the grand, gothic towers of London’s Royal Courts of Justice. The Inquiry had been announced ten months prior by then-Secretary of State for Defence Ben Wallace, following a series of damaging media reports and judicial review cases which alleged that Britain’s Special Forces had conducted a campaign of extrajudicial killings during the war in Afghanistan. As identified by former High Court judge and Inquiry Chair Lord Justice Haddon-Cave, the proceedings are intended to investigate the credibility of three core allegations (p.2). Namely, that extrajudicial killings were perpetrated by British Special Forces in Afghanistan between 2010 and 2013; that there existed a deliberate plan to conceal these allegations; and that the Royal Military Police’s (RMP) five-year investigation into the events was inadequate.
Over the first three days of hearings, the legal representatives of the Inquiry and its three core participant groups – the Ministry of Defence (MoD), the RMP, and the Afghan Families – presented their opening statements, laying the foundations of the arguments they will be pursuing throughout the months of hearings yet to come. These statements offer a fascinating and at times chilling insight into the evidence which has thus far been gathered by the Inquiry team, some of which had not previously been publicly available. Even if only some of the allegations presented to the Inquiry over these first days of hearings are proven to be true, they would represent a damning indictment of Britain’s Special Forces, and of the wider British armed forces’ ability to self-police when things go wrong.
The deaths at the centre of the Inquiry all occurred during secretive Special Forces night raids called Deliberate Detention Operations, or DDOs. These involved British forces carrying out surprise raids on compounds which their intelligence suggested had links to the Taliban. While the BBC’s Panorama published allegations that the intelligence which triggered DDOs was often highly inaccurate, Counsel for the Inquiry Oliver Glasgow KC stressed that the accuracy of this intelligence was beyond the remit of the Inquiry’s investigations (p.22). Once Special Forces had arrived at a compound, their mission was to capture any suspected Taliban insurgents for questioning, and carry out a search of the property to identify and confiscate illicit items and gain further intelligence. If all went to plan, these operations should not have resulted in any casualties.
However, in practice this was often not the case. Over the period being scrutinised by the Inquiry, dozens of Afghans were killed during these DDOs, with many raids featuring multiple casualties. Amongst the nine Afghan families who are represented as Core Participants at the proceedings, 33 individuals were killed across seven raids (p.14). This includes 18-year-old Fazel Mohammed, 14-year-old Mohammed Tayeb, 55-year old Mohammed Ibrahim, and 24-year-old Hussain Uzbakzai, who are pictured in the photos at the top of this post. And, as the death count grew, a number of troubling patterns became apparent within the internal Special Forces documents produced in the wake of the fatal raids.
In four of the seven exemplary cases outlined by Glasgow in his opening statement (p.31), Afghan men who had already been detained were allegedly led back into buildings to assist with the search. In each case, the individual was somehow able to produce a grenade or AK-47 from behind a curtain or piece of furniture, and was subsequently shot and killed. Four of the seven raids also featured individuals who were apparently killed in bedrooms. The Inquiry saw photos of walls featuring bullet holes mere inches from the ground, giving credence to the families’ claims that their relatives were shot dead whilst still asleep. In five of the seven cases, there was a disproportionate number of apparent ‘Enemies Killed in Action’ compared to the number of weapons found in the subsequent search. In one of these incidents, only three AK-47s were found amongst nine ‘Enemies Killed in Action’ (p.50). The Inquiry also heard allegations that British forces used ‘dropped’ weapons – that is, that they planted weapons after the fact to retroactively justify the killing of unarmed civilians (p.19).
As stressed by Richard Hermer KC, acting for the Afghan Families, these patterns were not only identified with the benefit of hindsight, but rather were contemporaneously flagged by senior Special Forces personnel (p.57). Over the course of the opening statements, the Inquiry saw at least a dozen emails in which the narratives set out in post-raid reports were met with incredulity, and senior officers reported concerns over circulating rumours of illicit activity. One email sent just hours after the deaths of three men during a raid in Gawahargin called it the sub-unit’s ‘latest massacre’, questioning in disbelief how so many Afghan males are finding themselves in possession of AK-47s after being detained (p.88). Another document details several allegations made to a senior Special Forces officer that there was a ‘deliberate policy… to engage and kill fighting-age males on target even when they did not pose a threat’ (p.139). In another email, one Special Forces representative asked a colleague whether they thought there might be a deliberate policy of asking Afghans to ‘go in and bring any weapons they may have out… thereby setting the conditions for their execution?’ (p.71).
Despite the apparently common concerns, yet more internal emails demonstrate a hesitance to raise them with the appropriate authorities. One stated a preference for attempting to ‘”nip” this allegation before it becomes an official allegation’, as its writer was ‘concerned that if this particular complaint gets elevated to a higher level then we will lost (sic.) control of it – and our political masters could knee-jerk and apply pressure for [a Special Investigations Bureau] investigation’ (p.155). A subsequent briefing note stated that ‘the aspiration is to deal with the complaint informally at the lowest level’ (p.155). Eerily, one email even predicted the existence of the Inquiry itself. On the 16th of February 2011, one official wrote: ‘…I get the sense that the way we are writing these [reports] up will not bear scrutiny in years to come – my comments are demonstrations of the kinds of things that Public Interest lawyers may undoubtedly raise in the inevitable public inquiries’ (pp.89-90).
The Royal Military Police
The allegations did eventually reach the RMP, but only after a judicial review case was brought by a relative of an alleged victim in November of 2012 (Noorzai v Secretary of State for Defence). However, again documents shown to the Inquiry indicate that the investigations, which later became a large-scale probe called Operation Northmoor, had significant failings. RMP records note that during inquiries into the incident at the centre of the Noorzai litigation, investigators were told that soldiers’ body cameras had been switched off at the time of the killings, that existing footage from other sources was overwritten before it could be viewed, and that investigators were unable to view the weapons recovered as they could not be located and had likely been ‘recycled or sold for parts’ (pp.87-88). The investigators also failed to interview two Special Forces eyewitnesses until 15 months after the incident; interviews were never conducted with the families of the deceased, nor other Afghan civilians present. A year and a half into the investigation, an email from an RMP Colonel noted ‘concerns that we are being obstructed in our investigation’ (p.90).
These issues were apparently replicated across Operation Northmoor. The Inquiry heard that investigators continuously struggled to gain access to key pieces of evidence and witness testimony, or else were met with a ‘regimental amnesia’ (p.25). One apparently indicative event is the case of the deleted server, which Glasgow promised would be the focus of significant scrutiny. It involves a Special Forces computer server which the RMP had expressed their intent to seize as part of their Northmoor investigations. However, by the time they gained access to the server in late 2016, they found that some of the data contained therein had been irreversibly deleted just weeks prior, contradicting a previous order which explicitly directed for the information to be preserved (p.20). In many ways, the debate surrounding the deleted data reflects an emerging question which will likely be fundamental to the Inquiry’s findings. Are these apparent institutional breakdowns due to genuine, if repeated, mistakes? Or do they form part of a malicious attempt to cover up allegations of British war crimes in Afghanistan?
The Saifullah Judicial Review
Even the judicial review case which eventually triggered the public inquiry was used by Hermer as an example of the failures which appear to litter the MoD’s handling of these serious allegations. The case, brought by a Mr Saifullah in late 2019, alleged that the three-year gap between the deaths of his relatives and the commencement of an RMP investigation did not meet the criteria of an effective and efficient investigation, which is a legal requirement under the European Convention on Human Rights. The Secretary of State for Defence contended that they could not have been expected to investigate the deaths in 2011, as the allegations that they were unlawful were not made until 2014. Ultimately Saifullah’s application for judicial review was denied, with the judge agreeing with the Government that it was unreasonable to expect an earlier investigation (pp.127-130).
Only after a renewed application in 2020 convinced a new judge that the judicial review should be allowed did MoD disclosures reveal that, in direct contradiction with the Government’s legal argument, there had been numerous contemporaneous concerns about the circumstances surrounding Saifullah’s relatives deaths. Indeed, they were killed during the very same raid called a ‘massacre’ in an email sent only hours later. Moreover, the Secretary of State’s legal team were apparently aware of these facts when they argued in court that the first allegations had only been raised years after the killings. As concluded by Hermer, if the second judicial review attempt had followed the trajectory of the first, ‘… it is certain that this Inquiry would not have been established. It is certain that the thousands of pages of deeply concerning documents about possible Special Forces war crimes would have remained locked away in filing cabinets and classified computer servers at the MoD’ (p.133).
‘Cock-up’ or ‘Cover-up’?
Hermer ultimately told the Inquiry that the judicial review episode comes down to the question of ‘cock-up’ or ‘cover-up’ (p.133). Whether the Inquiry determines that the Secretary of State’s legal team made an honest mistake when they failed to disclose the contemporary concerns, or whether it finds, as Hermer asserts, that it is part of a wider attempt to cover up the allegations, is a question that will not be answered for many, many months. The Inquiry team have thousands of documents to sift through, and hundreds of potential witnesses to contact.
In their opening statements, Brian Altman KC and Paul Greaney KC, counsels for the MoD and RMP respectively, enthusiastically assured that their institutions would cooperate with the Inquiry, referencing the masses of documents and exhibits disclosed thus far (pp. 52, 54). However, in a rather dramatic climax to the opening statements, Lord Justice Haddon-Cave emphatically pronounced that mere co-operation was not enough:
‘There have been a lot of fine words about supporting and co-operating with the Inquiry. There has been a lot of talk about sharing the aspiration of the Inquiry to get to the truth as soon as possible. There’s been quite a lot of store placed in the number of documents disclosed in response to Rule 9 requests. But, frankly, this is not enough. What is required… is proactive co-operation with the Inquiry by all military and civilian personnel alike.’p.157
Lord Justice Haddon-Cave seems determined to get to the truth of what happened during Britain’s secretive Afghan night raids all those years ago. As he affirmed in his inaugural address to the Inquiry at its first open hearing, ‘armed conflicts of this nature and wars unfortunately have many casualties. But it is important that accountability for what is done in times of armed conflict… is not one of them’ (pp.1-2). Let us hope he stays true to his word.