Torture and War Crimes – The Empty City

Why weren’t officers’ war crimes concerns reported to the military police at the time?

2nd April 2026

One key question for the Afghan war crimes inquiry

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.

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.

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].

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.

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.

“…perhaps things were out of control”.

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.

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.

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.

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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Unpacking the remarkable witness statement of Johnny Mercer – a closer look at the extraordinary evidence put before the Afghan war crimes tribunal

25 March 2024

Over at Prospect I have written a piece on the remarkable witness statement of Johnny Mercer MP given to the current Afghan war crimes inquiry.

(On that inquiry, see the earlier posts here and here.)

But before you read that Prospect commentary, however, please read the following original documents.

First: a typed memorandum, dated 5th April 2011, from a field commander of a UK special forces unit to the director of UK special forces. This is perhaps the most important publicly disclosed document to the inquiry so far.

It is hard to over-emphasise the importance of this 2011 memorandum. This law and policy blog will setting out the significance of the 2011 memorandum shortly.

But in essence, there were grounds for serious concerns of a field commander that UK special forces were killing detained individuals and then fabricating evidence that the killings were lawful – and that there was, at a senior level, a call for a thorough investigation.

The second document to look at is undated but we know from oral evidence from the inquiry it is from August 2020. It is a letter from Mercer – then a junior minister – to Ben Wallace, the secretary of state for defence.

The gist of the letter is that Mercer is unhappy with what he is being told within the department about the available evidence of war crimes by UK special forces in Afghanistan, and that he is also unhappy with what he is being expected to say to the House of Commons.

It is a sensible rule – if you have the time and inclination – to read the original documents referred to in a witness statement before reading a witness statement itself. This is because a witness statement is often a framing device for the presentation of original documents and other evidence which a witness knows a court will also see.

A witness may have an interest in presenting an original document in a certain way, and so it can be wise to have had your own independent reading of the document.

The art of commentary is too often the putting (and pulling) of carts before horses: you are telling people what to think about things of which they usually have no direct information.

But when following the work of an inquiry (or a tribunal or court) it is prudent if you can to be evidence-led, and thanks to the impressive inquiry website we can read some of the key documents and witness evidence for ourselves.

Third, and once you have got a sense of the 2011 memorandum and the August 2020 letter then click on and read the Mercer witness statement itself.

Take your time.

Read and digest the statement.

Re-read it.

You will not regret this, for it is an extraordinary tale, well-told.

It is a witness statement for the ages.

Now you can look at my Prospect commentary on the Mercer witness statement, which is here.

In summary: the witness statement is remarkable, but it also should not be taken at face value.

As one tweeter put it: the witness statement is both revelatory and self-serving.

Since writing the Prospect piece, I think there are a some further observations that are perhaps worth sharing.

So here I will further unpack the statement.

First, if you look carefully at the witness statement, you will notice that the only parts of it which were formally compelled by the Inquiry’s request for evidence are on pages 16 to 19 of what is a 19-page document.

This means the sterling narrative of the bulk of the document was, in effect, volunteered.

Mercer is making sure his version of events is being provided, and on his terms.

Second, the witness statement more-or-less frames at least four items of evidence to which the Inquiry would have independent access:

(a) the 2011 memorandum (above) and that Mercer was aware of it – and why he did not have a copy of it. Here we have the plausible secret-squirrel melodrama of a MoD official giving the minister the document and taking it away again:

(b) the other documents held by the MoD (and now before the inquiry) which had not been provided to Mercer:

(c) what was said by Mercer to parliament in the House of Commons adjournment debate of January 2020, and in particular this passage (emphasis added):

Compare this with what Mercer told Wallace in the August 2020 letter, where he says incorrect information was put by him before the House of Commons which requires formal correction:

And also with what he now says in his witness statement, about why he provided that incorrect information to the House of Commons:

(d) the circumstances of the August 2020 letter from Mercer to Wallace (above) – and what happened (and did not happen) and what he did (and what he did not do) following that letter:

Note here that Mercer states explicitly that he – as a defence minister – did not believe the chief of general staff (CGS) and the director of special forces (DSF) about whether these claims had been investigated.

(There will also be documents available to the inquiry in respect of the attempts by Mercer to investigate the matter – and the responses (and lack of responses) of officials and officers to Mercer’s enquiries.)

In summary, the Mercer witness statement frames the following evidence and information also available to the inquiry:

– how he knew that serious allegations warranting a thorough investigation were made at a high level (the 2011 memorandum);

– that he became aware of other key documents which were withheld from him (the documents obtained by Panorama and the Sunday Times);

– how he (in this own view) provided incorrect information to the House of Commons which needed to be corrected (the January 2020 adjournment debate); and

– how he ultimately did nothing about this, other than write an internal letter to the Secretary of State (the August 2020 letter).

One striking point to also come out of reading the Mercer witness statement is that claimant lawyers were far more successful in obtaining incriminating documents out of the Ministry of Defence than one of its own ministers seeking that same information internally.

As such, the Mercer evidence rather undermines the concept of the ‘political constitution’ – where we are supposed to rely on officials providing good information to ministers, and on ministers in turn providing that good information when pressed in parliament, rather than it being a matter for courts and judicial review. The January 2020 adjournment debate, at a stroke, is especially telling in this regard.

Mercer is to be commended for volunteering the additional information in his witness statement. He could have just given guarded answers to the formal requests, and he chose not to do so. It is also plain that Mercer is justifiably angry at the obstructions and lack of answers he got as a minister in his own department. For him to place all this information before the inquiry, and thereby into the public domain, is a boon for the public understanding of government.

And as a piece of prose, the witness statement – which has many refreshing signs of not being fully written or finalised by lawyers – is an impressive literary document, and quite the thing to read.

But the claps and cheers for Mercer should not go too far.

Left to himself, there would not be this inquiry – and indeed he expressly warns Wallace in the August 2020 letter of the prospect of such an inquiry. Indeed, left to himself queries from the media and from those affected by these allegations would still be referred to the MoD – the very MoD that would not give answers to one of its own ministers.

Left to himself we would not know that there were concerns at a senior level that there were numerous extra-judicial killings by UK special forces in Afghanistan and fabricated evidence to cover those killings up.

Left to himself, parliament would be (as he himself puts it) misled by incorrect information.

And left to himself the courts would be stymied in holding the armed forces to account in such civil and criminal matters by the very legislation he himself promoted.

The curious incident of the Afghanistan war crimes statutory inquiry being set up

21st March 2024

Back in December 2022, this Blog picked up on something odd.

Click here to read that post.

Joshua Rozenberg picked up on the strange development – and he also was kind enough to say that my observations were shrewd.

And now it may be becoming more obvious what is behind was seemed such a remarkable move by the government.

The extraordinary thing that happened was that the government suddenly set up a full statutory inquiry into alleged war crimes by the SAS in Afghanistan.

Generally the government does not like setting up such inquiries, regardless of how bad things look.

For example, there still has not been a statutory inquiry into what happened at the Deepcut barracks, and the inquiry into the war crimes in Iraq in respect of Baha Mousa was only set up grudgingly and with narrow terms of reference.

But here something seemed very different.

Something had happened, something had come to light – even if not (then fully) in public view.

For the government to announce a statutory inquiry under a highly regarded judge with full powers to obtain evidence requires an explanation.

It is difficult to overstate what an unusual thing this was to happen.

At first glance, there was not a lot in the public domain to go on for why the inquiry was set up.

For example, an outstanding edition of Panorama had indicated there may be a serious problem which needed addressing – but a close watch of that programme did not offer any conclusive substance.

Of the four named individuals in that programme who gave a studio interview, three were knowledgable only about what happened with Australian special forces, and the fourth was a former British military commander who rightly expressed his concern if – if – the allegations were true. Another couple of interviewees gave information anonymously, but even that material did not get very far.

(Looking back at the programme, one can see how careful and skilful the programme-makers were with the then available information and with what they could broadcast without undue legal exposure.)

What the programme did excellently was to show how the formal explanations for certain incidents simply did not add up.

But asking hard questions is not the same as incriminating evidence of the likely answers.

As powerful as the Panorama programme was, it was unlikely – in and of itself – to trigger a full public inquiry.

There therefore must be another explanation.

And if you looked carefully, the reasons for an inquiry were more apparent.

For example, here is a press release for some of the barristers working on a related case:

The key passage here is:

“Documents disclosed in the course of the judicial review proceedings and referred to in open court show British soldiers expressed disbelief at the official accounts of the deaths of the Claimant’s relatives in Saifullah, which were described as “the latest massacre!” by British special forces, and referred to a “a casual disregard for life” and a possible “deliberate policy” by British special forces “to engage and kill fighting-aged males on target even when they did not pose a threat”.

“After strenuously resisting both sets of judicial review proceedings for several years, in 2022 the Secretary of State applied to stay the claims on the basis that the circumstances of those deaths would be investigated by the public inquiry which was announced to Parliament today.”

This documentary evidence is in fact mentioned (though only in passing) in the programme

But if such evidence exists then we move on from just hard questions towards awkward answers.

In essence: it would appear from correspondence that formal accounts of the incidents were not believed at the time.

And when there is correspondence there are correspondents.

The question thereby becomes who knew what and said what, and how senior were those who either did not believe the official story or accepted implausible official stories without scrutiny.

Here we can look at the impressive and comprehensive online database put together by Professor Sam Raphael, from information in the public domain or referred to in open court.

First, here is a list of the incidents.

And second, here is a documentary record of who knew what and so on.

When you look at this material it becomes apparent that there was a sense at the time and at senior levels that not only the explanations for the incidents did not add up, but that something unethical and unlawful was happening.

In essence: there was a belief and understanding at senior levels in the British military that unarmed and detained prisoners were routinely being executed and that this was then being covered up.

If – if – this serious accusation was true (and few of us will know) then, of course, this would accord with what was proved in respect of what Australian special forces at the same time, as set out in the Brereton Report.

That report stated:

Against this finding of 39 victims in respect of Australian special forces, the Panorama programme “identified 54 people who were killed by [one] SAS squadron in suspicious circumstances, and this is just one unit in one six-month period”.

Of course, there will be pushback against such contentions.

This pushback can either be simple denial, or outrage at who could dare make these accusations, or derision of the accusers.

Or it may be a shruggy “So what? These incidents happen”.

The thing is that the the government is usually very happy to share in this mass denial, outrage, derision, and shrugginess.

But.

This time it did not.

And this is the curious incident.

Instead of seeking to discredit the accusations and accusers, or of wanting to deflect, something within government led to this full statutory inquiry being established instead.

And now this inquiry has received some very interesting evidence from an unexpected source, which I am now writing about for Prospect.

What is often left unsaid in complaints about pesky human rights law and pesky human rights lawyers

15th December 2023

Those criticising human rights law and lawyers often shy away from spelling out the substance of a particular right

You may or may not remember Abu Qatada and how he once featured in British politics.

About ten or so years ago, he was the Rwanda policy of his time.

The British government under both Labour and then the coalition of Conservatives and Liberal Democrats wanted to deport him to Jordan.

But the pesky human rights lawyers and pesky human rights judges and pesky human rights courts would not let this deportation happen.

And how the politicians and the media fumed.

The headlines seem somewhat familiar:

But what was missing from almost all the news coverage and political discussion was the actual reason why human rights law was preventing the deportation of Abu Qatada.

And that reason featured an ugly word, a word which politicians and the media of the United Kingdom like to avoid.

That word was torture.

In particular, in this case, whether it was open for a person to face legal proceedings where the evidence had been obtained by torture.

This meant that if you wanted to deport Abu Qatada by withdrawing from the European Convention on Human Rights (ECHR) what you were really saying was that it was fine for a person to face criminal charges based on evidence gained by torture.

Of course, that is not what was being said: what was being blamed were the pesky human rights lawyers and pesky human rights judges and pesky human rights courts.

But all the pesky human rights lawyers and pesky human rights judges and pesky human rights courts in the world can do little or nothing unless there is an actual right being infringed.

In the end the United Kingdom resolved the problem not by breaking human rights law or withdrawing from the ECHR, but by negotiating a treaty with Jordan where it was agreed that torture-gained evidence would not be used:

Abu Qatada was deported not because then Home Secretary Theresa May stood up to the pesky human rights law, but because she and the United Kingdom government complied with human rights law.

And what then happened?

Without being able to rely on torture-gained evidence, Abu Qatada was cleared in Jordan of the criminal charges he faced:

Ten years or so later, we are repeating the same sort of story.

The pesky human rights lawyers and pesky human rights judges and pesky human rights courts are stopping the government implementing the Rwanda scheme.

But, as with Abu Qatada, most (if not all) of those upset by this non-implementation leave unsaid the actual substantial right at issue.

The principle of non-refoulement means that an asylum-seeker should not be returned (or otherwise removed) to a country where their human rights will be violated.

As the Supreme Court set out in the recent appeal judgment:

Those in favour of the Rwanda scheme do not say (aloud) that they actually want asylum-seekers to end up in places where their lives and freedoms will be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.

Just as those in favour of Abu Qatada’s deportation did not say (aloud) that they wanted a person to face charges based on torture-gained evidence.

But in both cases that is the necessary – inescapable – implication of their position.

Sometimes, of course, when it suits, those opposed to human rights law will happily spell out the substance of their grievance: take prisoner votes, for example.

In that example, both the substance of the right and pesky human rights lawyers and judges and pesky human rights courts could be attacked, and were.

But even with prisoner votes, the underlying problem was resolved by political negotiation and case law rather than defiance:

Again: reform and compliance, rather than confrontation.

Unlike the prisoner votes issue, however, those in favour of the Rwanda scheme do not want to spell out the underlying human rights issue.

And that omission is – or should be – a tell.

It tells us that those wanting to rid us of human rights law do not want to address why there is a human rights issue at stake.

They want to tell you the tale of pesky human rights lawyers and judges and of pesky human rights courts as being a political problem in and of itself.

No doubt many human rights lawyers and judges are irksome, but it is only possible for them to be obstructive when there is a fundamental right at stake in a concrete case.

And, as with Abu Qatada and prisoner votes, such obstructions can be resolved by, well, politics: reform, negotiation, compliance.

You know: the sort of things which politicians are supposed to do, when they are not blaming human rights law instead.

Using ugly situations as the means to attack human rights law indicates that there is something else going on.

It shows that what is really being clamoured for is for brute executive might to be allowed, despite the violations of rights in individual cases.

But that bit is usually left unsaid.

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How the campaign to stop the United Kingdom government from making it more difficult to prosecute war crimes was won

16th December 2022

Sometimes legal things do not always end badly.

Two years ago, in 2020, I did a video for the Financial Times on how the United Kingdom government was then making it more difficult for former United Kingdom service personnel to be prosecuted for war crimes.

The government was in 2020-21 using a Bill to make it more difficult for any historic civil or criminal legal action to be brought against former service personnel and – for some reason – torture and war crimes would be among those offences that would be made more difficult to prosecute.

Whatever that reason was, it was not a good reason.

There are certain offences so grave that there should not be formal or effective immunity for those who commit those crimes.

And this was not about battlefield or front line operations, but about the treatment of civilians or captives.

Many – including serving and former military personnel – were deeply unhappy with this proposed immunity.

And the fine people at Freedom from Torture and at other campaign groups put together an impressive and persuasive campaign against the proposed legislation:

The pressure mounted, and the Bill’s progress through Parliament was getting trickier.

And then, in April 2021, the government capitulated:

And so the Bill passed into law with the following exemptions:

Two years later, as this blog set out yesterday, a full statutory inquiry has now been announced into illegal actions by service personnel in Afghanistan,

For such an inquiry to be announced there must be some significant prima facie evidence which has come to light, even if that evidence is not conclusive about any wrongdoing.

Yet just two years ago, the United Kingdom government was anxiously seeking to legislate so as to make it far more practically difficult for any historic war crimes to be prosecuted.

Thanks to the campaigners at Freedom from Torture and elsewhere, that legislative proposal was checked.

As the post on this blog also averred yesterday, it is difficult – legally, politically, culturally – for our armed services (and security services and police services) to ever be held to account for possible wrongdoing.

And the fact that there is sufficient information now available to trigger a full statutory inquiry (and this can be said without prejudice to that inquiry’s conclusions) means that those who campaigned against the exemption for war crimes were entirely right to do so.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

Why the inquiry announced into potential war crimes is interesting – very interesting

15th December 2022

Now this is something interesting.

Very interesting.

As reported by Joshua Rozenberg, a senior judge has been appointed to head a full statutory inquiry to “investigate into and report on alleged unlawful activity by British armed forces in their conduct of deliberate detention operations (DDO) in Afghanistan during the period mid-2010 to mid-2013”.

The terms of reference, which should be read carefully, are here.

There are usually formidable barriers to any such investigation taking place – legal, political, and cultural.

Of these, the cultural barrier is always the hardest to clear.

Any allegation of wrongdoing by our armed forces – and also our security and police forces – is usually first met by denialism: we are the goodies, and these things would not be done by us.

Then there is derision: how dare you criticise those in the battlefield and on the front line from the comfort of your armchairs.

(This response is often deployed even when the alleged wrongdoing is far away from the battlefield or the front line, and is in respect of the treatment of captive non-combatants and civilians.)

Next will come the misdirections: counter allegations and smears about ambulance-chasing lawyers and compensation-seeking clients.

(And, indeed, there can be bad lawyers, just as there can be bad soldiers and bad police officers and security operatives, for there is good and bad in every profession – it is just that some professions are more accepting of this possibility.)

Once these barriers of denial, derision and misdirection are cleared, and the facts and evidence are incontestable, then there will come the shrugs of “so what?” and the assertions of moral equivalence.

Such things do not matter, we will be told, and everyone does it.

What there will rarely be is anyone actually being held properly to account.

The cultural presumption against any wrongdoing by our armed forces – and by our security and police forces – is so powerful that they hardly need any formal legal immunity.

But.

Something is up here which means the government is not even attempting to deploy denial, derision or misdirection.

Maybe the government knows that such things will not wash here.

The government has instead gone to appointing a highly-regarded judge with an outstanding reputation and given him the strongest possible legal powers.

This would not be done lightly.

This inquiry will be worth watching carefully.

Perhaps nothing is afoot.

Perhaps there is nothing to see here.

But for some reason the government does not think that denial, derision or misdirection will be enough for disposing of this matter.

So this inquiry is interesting.

Very interesting.

POSTSCRIPT – 16th December 2022

Shrewd comments here https://t.co/vieweNajHv by David Allen Green on my piece yesterday about the appointment of a statutory judicial inquiry into allegations that British special forces unlawfully killed detainees in Afghanistan a decade ago.https://t.co/oH8rFvzYk3 DAG is right pic.twitter.com/rnxXr1HWMJ

— Joshua Rozenberg (@JoshuaRozenberg) December 16, 2022

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These law and policy posts are also crossposted on my new “law and lore” Substack.

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Who watches the watchmen?

Summer Solstice 2022

Over at Al Jazeera – where I am pleased to write posts from a liberal constitutionalist perspective – I have written about what the Lord Geidt resignation tells us about British politics.

Somewhat flatteringly, that post has been chosen as a ‘best column’ by The Week magazine:

From a personal perspective, the post is one of very few I have written for the mainstream media with which I am happy.

(One day I will get the hang of writing paragraphs with more than one sentence.)

On the back of that Al Jazeera post I thought I would add here some thoughts about constitutionalism and absolute power.

For, as Lord Acton famously once said (and to which I allude in the Al Jazeera post), power tends to corrupt and absolute power corrupts absolutely.

One problem with many – if not most – proposed or imagined political systems is that there is little or nothing to check or balance those who will have the most power under that system.

The hope is presumably that those with the most power will be selfless patriots – good kings, good chaps, and so on.

But, of course, what will tend to happen is that those with power will be corrupted, and those with absolute power will be corrupted absolutely.

And not just corrupted in a narrow financial sense, but in the broader sense of becoming debased.

In this way Orwell’s pigs in Animal Farm may be a more realistic guide to what happens with sustained one party control than the focused O’Brien in Nineteen Eighty-four.

Alan Moore – who I mention expressly in the Al Jazeera post – has repeatedly shown in his stories what can happen when individuals get unchecked power.

In Watchmen – there is a character with absolute superpowers who goes quite mad, a character with immense wealth who becomes immensely destructive, and a character with complete government protection who does whatever he wants to whoever he wants.

And these are the supposed good guys – and none of them is the supposedly unhinged one, Rorschach.

Switching from imagined communities to historical examples, there are actually few examples of that most peculiar figure ‘the enlightened despot’.

What we do have are despots with good P.R. and gullible historians.

For if a leader is ‘enlightened’, they do not need to be a despot.

Even the supposed good guys of the modern age – the British – have a wretched record if you look closely enough – for example in Kenya, in Northern Ireland, and in Afghanistan and Iraq.

The documented evidence of torture and war crimes by the British cannot be denied, but few realise or care.

For that is what happens when you have good P.R. and gullible historians.

Even the popular comedy meme about ‘Are we the bad guys?’ is dressed in foreign uniforms.

But corruption – in both its narrow and broad sense – is not just about what happens to foreigners.

It can happen in any polity – and with any rulers, if they believe they can get away with it.

That is why any political system which confers great power on any individuals is suspect.

Yes, you may have a selfless patriot as an initial ruler, but what do you get when the selfless patriots die away?

The primary job of any liberal constitution is not that it provides and allocates powers, but that it effectively checks and balances those with powers.

It assumes the worst – even if there are hopes for the best.

And if those with the greatest powers in any political system are without checks and balances then it should not come as a surprise that powers are abused.

Indeed, it would be more of a surprise if they were not.

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When both lawyers and the law are to blame

4th March 2022

Over at the Financial Times I have a piece on the extent to which lawyers are to be blamed for the abuse of English law by oligarchs.

https://twitter.com/davidallengreen/status/1499802380711387138

The article is, in turn, an elaboration of a post I did at this blog earlier this week – and it is a topic I have also tweeted about.

And one response has been to assume that my attempt to say that lawyers are not entirely to blame means that it is being suggested that lawyers are not at all to blame.

I have been careful to state – and explain – that lawyers are culpable, and that solicitors especially get to choose who they act for and in what way.

This is not good enough for some commenters – and I have been told that I am somehow making excuses.

But the problem is with any area of law that relates to dreadful things – oligarchs, torture, slavery, police brutality – there are both systems and individual agency.

This is an area this blog has explored before.

https://twitter.com/davidallengreen/status/1424059049360994307

And the focus on either systems or individual agency does not give you a full understanding of how the law and lawyers can enable such bad things to happen.

It has not been pleasant getting the ire that some want to dump on lawyers generally – but until and unless we can see that problems can be both systemic and personal, we are unlikely to resolve those problems.

And just jeering at lawyers, while satisfying, can be a substitute for meaningful reform of bad law and bad legal practice.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

Realpolitik v universal war crimes jurisdiction?

2nd March 2022

Just a quick post tonight to ask a question to which I do not know the answer.

If – as a matter of Realpolitik – the invasion of Ukraine could be brought to an end by an amnesty for Putin, would that be a price worth paying?

Would it be worth excusing him from any war crimes prosecution just so as to bring the invasion to an end?

Or should there be an absolute insistence that, whatever happens, Putin must face a war crimes prosecution?

What do you think?

Realpolitik or universal war crimes jurisdiction?

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

Are President Biden’s comments on ‘the Irish Accords’ a life line for the Human Rights Act?

22nd September 2021

Yesterday United States President Biden spoke about his concern about a possible change to what he called ‘the Irish Accords’.

From the context of the question and answer, Biden meant the Good Friday/Belfast Agreement – though the question was framed in terms of the Northern Irish Protocol of the Brexit withdrawal agreement.

The question and answer are here and you should watch and listen for yourself:

Life line for our Human Rights Act, too. https://t.co/HB4ZQN8JfH

— Sonya Sceats 🧡 (@SonyaSceats) September 22, 2021

You will see in the tweet above that the estimable Sonya Sceats, the chief executive of Freedom from Torture, avers that the exchange is a life line for the Human Rights Act 1998.

Is she right?

And what is the connection between that exchange and the Human Rights Act 1998?

Here we need to see what the Good Friday/Belfast Agreement says.

In respect of the European Convention on Human Rights (ECHR), the agreement says the following:

‘There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including […] the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission [and] arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland’

and

‘The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency’.

These passages are explicit: the ECHR is a ‘safeguard’ and the ECHR has to be enforceable in the courts of Northern Ireland.

The agreement does not expressly mention the Human Rights Act 1998 – not least because that legislation had not yet been passed at the time of the agreement.

But one of the things that the act does in respect of Northern Ireland – as well as for the rest of the United Kingdom – is to make the ECHR enforceable directly in the courts.

This is instead of requiring a party seeking to rely on the ECHR to petition the European Court of Human Rights in Strasbourg, as was the position before the act took effect.

Of course: you do not – strictly – need the Human Rights Act 1998 to be in place to fulfil the express requirements of the Good Friday/Belfast Agreement, as long as the ECHR remains enforceable locally in Northern Ireland.

But if the Act were to be repealed – which is a long-term goal of the new lord chancellor and justice secretary Dominic Raab – then there would need to be replacement legislation in place the very day the repeal took effect for ECHR rights to remain directly enforceable in the courts of Northern Ireland.

So does this mean the Human Rights Act 1998 is safe?

I am not so sure.

I averred on this blog when Raab was appointed (and I am sorry to quote myself):

‘And one would not be surprised that one stipulation made by Raab in accepting the position as lord chancellor is that he get another crack at repealing the human rights act.

‘If so, then the act will probably be repealed – though there will no doubt be a less strikingly (and provocatively) entitled ‘European Convention on Human Rights (Interpretation and Incorporation of Articles) and Related Purposes Act’ in its stead – not least because the Good Friday Agreement provides that the convention has to be enforceable in Northern Ireland.’

Having seen the exchange with Biden, I am now wondering if my (dismal) view is correct.

A wise government of the United Kingdom will be anxious not to give the slightest indication that anything related to the Good Friday/Belfast Agreement was up for any change – and continuing local enforcement of the ECHR is an express provision of that agreement.

A wise government, concerned about its relations with the United States, would thereby not touch the repeal of the Human Rights Act 1998 with a barge pole.

It would just take one credible complaint that the Good Friday/Belfast Agreement was at risk, and there would be an international problem.

Repealing the Human Rights Act 1998 would not be worth these risks – especially as it would have to be replaced immediately with legislation having the identical effect in respect of Northern Ireland.

But we do not have a wise government – we have a silly government.

And given the long-term obsession of the new lord chancellor with repealing the Human Rights Act 1998 – and that this may even be a reason for why he accepted his political demotion – one can see the repeal (and its immediate replacement) still going ahead in symbolic form – even if not in much substance.

But the politics of symbolism does not just have one direction.

Against Raab’s fixation with the symbolism of repealing the Human Rights Act 1998 is the transatlantic symbolism of doing anything that could remotely affect the Good Friday/Belfast Agreement.

So it may be that Sceats’ view is correct – and the Human Rights Act 1998 is safer than before.

But, on any view, repeal seems an unwise political path to take, given how much politically – and how little legally – is at stake.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.