The Empty City

The Afghan war crimes inquiry is extraordinary.

It is extraordinary that it even exists, for such statutory public inquiries are rare, especially in respect of concerns about military matters.

As this blog set out when the inquiry was set up (here and here), something serious was afoot and the government believed an inquiry was the best way to address what had come to light.

The inquiry is also extraordinary in how it is going about its work. It is far more transparent than one would have expected, with a packed website. The inquiry has even ruled against the government on many transparency matters. One gets the sense that the inquiry seriously wants whatever happened (and did not happen) out in the open.

And the inquiry is extraordinary in the documents and other evidence it has uncovered and promptly published, even before the inquiry finally reports. For example, in March 2024 we had the remarkable witness statement of then minister Johnny Mercer (see posts by me at Prospect and on here).

At Prospect earlier this week I looked at another remarkable document published by the inquiry – a preliminary report into the eventual military police investigation into the allegations of war crimes by UK special forces in Afghanistan.

But here it may be useful to take a step back, and to ask why the concerns of military officers were not referred to the military police at the time for an immediate investigation when memories would still be fresh and certain evidence still available.

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The key – crucial – feature of the allegations of war crimes by UK special forces in Afghanistan is that there were concerns expressed and recorded at the time by senior officers.

This is thereby not an example of allegations originating from pesky lefty ambulance-chasing claimant lawyers and their compensation-seeking clients.

Instead these are concerns by serious senior officers – at the time.

That the concerns were expressed and recorded by serious senior officers at the time explains (in my view) why the government rushed to set up this inquiry when various documents came to light in litigation. As this blog has previously averred, setting up such an independent inquiry with full statutory powers, chaired by a senior judge willing to use those powers, would not have been a light and easy decision by ministers.

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Now let us look at the key statutory provision – section 113 of the Armed Forces Act 2006.

The provision is headed “CO [commanding officer] to ensure service police aware of possibility serious offence committed” and it says (as far as is relevant):

(1) If an officer becomes aware of an allegation or circumstances within subsection (2), he must as soon as is reasonably practicable ensure that a service police force or the tri-service serious crime unit is aware of the matter.

(2) An allegation is, or circumstances are, within this subsection if it or they would indicate to a reasonable person that a Schedule 2 offence has or may have been committed by a relevant person.

(3) In subsection (2) “relevant person” means a person whose commanding officer is the officer mentioned in subsection (1).

Note the effect of section 113(3) is that the obligation is not on any officer, but on an officer in command of the relevant person. This means an officer in, say, another unit would not have the direct obligation under section 113.

(That said, there seems nothing in section 113 to limit such reporting to a commanding officer.)

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Now let us look at the documentary evidence disclosed by the inquiry.

Here is a typed note made by an officer dated March 2011.

(We know the author is of officer rank because of the next document after this one below.)

The note says:

STATEMENT OF CONVERSATION RELATING TO [special forces unit]

During loose conversation with a member of [a special forces unit] a number of topics were discussed relating to the conduct of kinetic operations in Afghanistan by [a special forces unit].

During conversation with a [redacted] from [special forces unit] he stated that it was standard procedure to deploy regularly hit Low and Medium value targets in the Helmand area. During these operations it was said ‘all fighting age males are killed’ on target regardless of the threat they posed, this included those not holding weapons. It was also indicated that ‘fighting age males’ were being executed on target, inside compounds, using the variety of methods after they had been restrained. In one case it was mentioned, but the pillow was put over the head of an individual before being killed with a pistol. It was implied that photos would be taken of the deceased alongside weapons that the ‘fighting age male’ may not have had in their position [possession?] when they were killed.

The conversation implied that the intention of regular operations was pacify areas in parliament by destroying all the medium and low level Taliban Command chain and facilitators, using any means possible.

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Every document comes into existence for some reason(s) or purpose(s).

Why was this March 2011 note created?

It would appear that it was created at the request of a more senior officer to whom the author of the note had conveyed the content of that conversation.

That more senior officer, in turn, typed out a month later the following as a communication to the director of special forces (and thereby an officer commanding the relevant special forces unit for the purposes of section 113):

The communications says:

SECRET UK EYES ONLY – LIMDIS [limited distribution]

05 Apr[il] [20]11

DSF* [director of special forces]

ALLEGATIONS OF EJK [extrajudicial killing] BY UKSF [UK special forces]

1. My apologies for not raising this with you during my leaving call, but I was still formulating my thoughts and our truncated meeting didn’t seem the right moment.

2. I have for some time been aware of rumours within the [UK special forces] that [special forces units] have been conducting some of the executions of supposed Taliban affiliates on target in AFG [Afghanistan]. Until very recently, I have not reported this any further and cautioned my team against peddling malicious speculation. However, I have now been given more information of the nature which makes me seriously concerned over reputation of UKSF. One of my team, an officer, has been told by an individual from [a special forces unit] that there is in effect an unofficial policy among the [special forces unit] to kill wherever possible, fighting age males on target, regardless of the immediate threat they pose to our troops. In some instances this has involved the deliberate killing [of] individuals after they have been restrained [by the special forces unit] and the subsequent fabrication of evidence to suggest a lawful killing in self defence.

3. What I’ve been told is not amount to anything as substantial as evidence. But to my sense it is more than just what had been, until recently, vacuous rumour. But if UKSF individuals are conducting EJK’s then the implications are clearly stark. Notwithstanding this, I feel most strongly that thorough appropriate investigation is warranted. To be frank, I do not know to do next and to that end I’d welcome your assessment on what to do next.

4. I am sorry to bring this to you at what is already a busy time. Rest assured I have only been aware of this issue for several days, not longer, and that I feel I needed to pass on my concerns before I leave post as commanding officer [of another special forces unit] and before I assume [a special forces headquarters position].

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There are many things that can be said about this document.

It is perhaps unfortunate that the concern is framed in terms of the reputation of the special forces rather than, well, war crimes were bing committed – but the further reference to “stark” implications is probably an implicit reference to the seriousness of what is being communicated.

And as the senior officer says, it does not amount to (direct) evidence – at least of any war crime.

But, as the senior officer sets out, it appears to provide the basis for a “thorough appropriate investigation”.

And the senior officer also requires the director of special forces to make an “assessment”.

And unlike the senior officer making this communication (who commands a different unit), the director of special forces is a commanding officer for the purposes of section 113.

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Separate to the above, but at the same time, there is another senior officer in special forces with concerns.

The Assistant Chief of Staff Operations within the directorate of special forces noticed something was not right.

In a later witness statement (now published by the inquiry) he says the following:

During Feb[ruary] [20]11 (01/02/2011 – 28/02/2011), the exact date I cannot recall, my concern over the disproportionate number of Enemy Killed in Action (EKIA) versus the number of weapons recovered on such operations was such that I had a conversation with [the director of special forces]. I can’t recall the exact detail of the conversation but I remember that he directed me to contact [redacted] to establish what was going on.

I subsequently telephoned [reacted] […], when I expressed my concerns to him about the reported figures: number of deaths against the number of weapons recovered.

I can’t recall what [his] reaction was but both the call and the immediately earlier conversation with [him] had been in relation to one incident which appeared in keeping with the concerning trend I have discussed; I can’t recall the specifics of this incident but it followed the same outcome as the others in respect of ratios.

In the following months I maintained case observance of the post incident reporting in Afghanistan and in particular the numbers of EKIA [enemies killed in action] compared to the number of weapons recovered. The numbers continued, in my mind, to be disproportionate which just increased my concern that perhaps things were out of control.

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“…perhaps things were out of control”.

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Unlike the note and communication above, this would constitute direct evidence – not of extrajudicial killings, but of discrepancies between “the numbers of EKIA [enemies killed in action] compared to the number of weapons recovered”.

This was not hearsay evidence, but “numbers” and “case observance” – data and observations based on that data.

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It would therefore appear that in or aboutApril 2011 the director of special forces had (at least):

(1) the April 2011 communication from a senior officer reporting a conversation and recommending that there be a thorough investigation (and also possibly the March 2011 note); and

(2) the data-based observations of another senior officer, the Assistant Chief of Staff Operations.

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And what did the director of special forces do?

He did not make a referral to the military police for an investigation under section 113 or otherwise.

Instead, it seems from the recent preliminary report published by the inquiry on the eventual “failed” military police investigation, the director of special forces simply signed a document (seemingly pre-prepared by a lawyer) stating that the use of force was lawful.

Tick, box.

Maybe that was the right decision, maybe not.

But it is a decision on which the inquiry is likely to receive further evidence and may form a view.

And it is part of the terms of reference of the inquiry to see whether there was any cover-up of what happened when these Afghans were killed and of the concerns expressed at the time.

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We do not know if there was a cover-up.

We do not know if there were war crimes.

But we do have documents and witness evidence that require an explanation, and it appears that the inquiry is genuinely seeking to provide this.

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