When is it ever not “proportionate” to investigate a war crime?”
Former Army Legal Adviser, Rev. Nicholas Mercer
Even if the incidents outlined at the beginning of this report were referred to the one of the roughly 120 RMP personnel in Afghanistan, an outcome that would require someone within or close to Special Forces to report it, there are a number of factors that mean investigators face an uphill struggle to get to the truth.
Aside from the cultural untouchability of Special Forces within the military, it can be extremely difficult for RMP officials to investigate higher-ranking officers or the personnel that they command. According to a source who was in the RMP during the peak of British engagement in Afghanistan, there were a variety of tactics that could be used to frustrate their inquiries.
These included, if abroad, removing the investigator’s transport options, meaning they couldn’t access the suspects. Domestically, the officers would send suspects and witnesses away on courses, exercise or leave, again, to make them inaccessible to the investigating officer. This would buy time for the suspects to either get their story straight or allow for enough time to pass to ensure that a lack of clear memory of the event became a plausible defence. And, as was outlined earlier, Northmoor investigators noted “regimental amnesia” amongst those they spoke to.
Whilst it is almost impossible to provide evidence of such activity without a whistleblower going public, AOAV has heard such claims from a number of sources.
If such behaviour and underhandedness was a regular feature of investigations, it would send a clear statement of intent to the investigator that they would have to escalate their complaints up the chain of command in order to further their inquiries. Just the threat of such a struggle would be enough of a deterrent for many investigations, according to a former RMP source.
If the target of the investigation carried the elite status of a Special Forces unit, the ability and the confidence to obstruct investigations appears to have only become more potent. According to two former investigating officers that AOAV spoke to – one within the British military, another from NATO – there was a culture that the UKSF were essentially untouchable.
We heard of an occasion where an RMP officer was flown out from the UK to Afghanistan to investigate an incident involving Special Forces. They were met by a senior UKSF officer who told them (we paraphrase): ‘Here’s what happened, you don’t need to interview anyone and I’ve booked you on the first flight back home tomorrow.’
Whether this happened exactly as described or not, the subtext of the claim was that, all too often, RMP officers were prevented from doing their job. And sometimes, the fierce loyalty engendered in the Armed Forces might mean that they were not that vocal if such obstacles were put in their way.
Individual self-interest can also play a role. We heard criticism of one Provost Marshall (Army) based in Afghanistan as being a careerist or, in other words, they put their own prospects before their duty. The allegation was that if a referral to Service Police was made regarding SF crimes in Afghanistan, it would likely go through him. If a careerist Brigadier was looking to get on the good side of senior SF officers, they might do well to make sure the complaint didn’t go any further.
Other barriers existed. Unless they were a very senior member of the Special Investigation Branch, the investigator would not have the security clearance needed to access the intelligence and after-action report from a particular UKSF night raid.
In short, they would have neither the access to information nor the hierarchical clout to question the official Special Forces’ version of events.
According to a written account from a retired Major who served in Iraq and Afghanistan, two of his colleagues were threatened with violence by a SAS commando when they questioned the disappearance of two Afghan detainees. The threat worked, they walked away and never reported it.
“As far as the rest of the Army is concerned, you don’t mess with the SAS. This is not because they can kill you with a glance, or whatever, but because they are the blue-eyed boys. They are beyond discipline in the normal way. Few people within the military know to whom they ultimately answer,” wrote the Major.
And UKSF personnel have pushed for detention practices they knew would be illegal, in order to edge the prisoners into a more vulnerable state, according to a former RMP source. They told us that Special Forces personnel had demanded that lights should be kept on 24 hours a day and that the toilets be bugged at a detention facility in Kandahar.
The former would constitute a violation of Article 25 of the Third Geneva Convention, 1949, which states a specific requirement for a ‘lights out’ period. The subsequent sleep deprivation that may be caused by lights being on 24-7 is also considered to be a form of ‘ill-treatment’ by the UN.
The UK’s own Joint Doctrine Publication on Captured Persons states that: “Captured Persons shall be given at least eight hours of rest per 24-hour period, during which there shall be an opportunity to sleep for a single undisturbed period of no less than four hours.”
It goes on to say that sleep deprivation is one of the ‘five techniques’, along with stress positions, hooding, subjection to noise and deprivation of food, that were banned by the UK Government fifty years ago.
Yet at the beginning of the past decade, a UKSF member was demanding it and needed an external person to stop them from doing it. It leaves open the question: what happens when the UKSF detained prisoners and they knew no one was watching?
Even in a scenario where all these obstacles were overcome and enough evidence was eventually gathered for the prosecution of a Special Forces member, the very institution in charge of taking these cases to court may be disinclined to do so due to technical difficulties or military-cultural barriers.
As an anonymous source was paraphrased as saying in The Sunday Times in 2017: “It was difficult to find a court-martial military jury with the required security clearance that was properly independent of the SAS and that this could have influenced the SPA’s [Service Prosecuting Authority] decision not to prosecute”. If this was the case, it would mean the untouchable nature of the Special Forces was de facto enshrined by its own exclusivity.
The standoff between UKSF and RMP in Kandahar would not be the first time that an apparent breach of the Geneva Convention was shrugged off by the UK military.
Reverend Nicholas Mercer reported a number of alleged criminal offences in Iraq. As he explained to AOAV: “I was the former Command Legal Adviser for the HQ 1st (UK) Armoured Division so these were well founded. In one case, I was an eyewitness to the abuse of Iraqi prisoners. In another, I came across the running of a so-called black site in Iraq and believe that the prisoners may have been rendered (which is a grave breach of the Geneva Conventions).
“However, all my complaints were dismissed. Not on the grounds that they were vexatious, but because it would apparently not be “proportionate” to investigate them. I was a criminal lawyer with many years of prosecuting Court-Martial under my belt and this excuse of not being “proportionate” to investigate was without precedent. When is it ever not “proportionate” to investigate a war crime?”
While contemporaneous investigations could be stymied and even seen as non-starters, eventually a number of allegations were looked at by Operation Northmoor, a parallel to the Iraq Historic Allegations Team (IHAT), but it came to focus on allegations of executions by British Special Forces.
Set up in 2014, more than 600 allegations were looked at, including 52 alleged illegal killings. The appetite for conclusive results, though, was not there. One insider told AOAV that in IHAT there was not even a fluent Arabic speaker as part of the core team – they relied on local translators. The source said that there was an unspoken culture that IHAT would not find anything unless it was unavoidable. Considering the evidence we have seen, the same may be assumed of Operation Northmoor.
In February 2017, Defence Secretary Michael Fallon, alongside the dissolution of IHAT, announced that 90% of the Afghan investigations had been discontinued, with just one case of unlawful killing remaining. In a statement, the MoD said: “The Royal Military Police has found no evidence of criminal behaviour by the armed forces in Afghanistan.”
According to whistle-blowers who spoke to Panorama in 2019, however, the application of impartial justice was far from rigorous. RMP detectives revealed they had not even had the chance to speak to key Afghan witnesses before Northmoor was shut down. One Northmoor detective told the BBC at the time: “I wouldn’t write off a job until I have spoken to both parties. If you are writing off a job and the only thing you have got is the British account, how is that an investigation? My view is that every one of those deaths deserved to be examined and due process of law to take place.”
The MOD asserts that the Service Prosecuting Authority is independent and that the lack of prosecutions from Northmoor was the natural outcome due to the lack of evidence.
Questions were put to Fallon about the independence of the investigations into Afghanistan. Responding to a question, from Julian Lewis MP, as to whether those investigating Special Forces have enough independence, as they themselves will require to be cleared for “top-secret access” and “are likely to be perceived as being too close to the organisations that they are investigating”, Mr Fallon said: “What I can do is to reassure you that this investigation is being conducted independently of the units concerned and independently of Ministers. It is not a process that I exercise any control over.”
The British government might claim that the prosecutorial process was independent but whistle-blowers point to a clear institutional preference from the MOD for no prosecutions.
When, for instance, IHAT closed in February 2017, its outstanding cases were reduced, overnight, from 3,400 to just 20. IHAT had cost the British taxpayer £34m and failed to secure a single prosecution. In relation to IHAT, The Guardian was to report a detective stating: “Many complained that they had gathered what they thought was enough evidence to prosecute, and then they’d have an MOD lawyer go to the senior leadership of IHAT and tell them to drop the case.”
The MOD denied this description, but the lack of rigour across multiple cases also highlighted in earlier sections, certainly raises serious doubts over the institutional impartiality of the case management. It is also worth remembering that the consistent commentary from senior politicians and newspapers to end the so-called vexatious prosecutions of UK military personnel does not exist in a vacuum.
A Defence sub-committee, chaired by Johnny Mercer MP, published a report in 2017 as IHAT was shut down, entirely on the subject of blunting the power of bodies investigating historical allegations. In its summary, it stated: “Both the MoD and IHAT have focused too much on satisfying the accusers and too little on defending those under investigation. Ministers must take the lead in ensuring that this rectified [sic].
“The manner in which the armed forces are investigated requires fundamental reform. The focus has been on satisfying perceived international obligations and outside bodies, with far too little regard for those who have fought under the UK’s flag. The armed forces deserve to be held in the highest esteem and a repeat of IHAT must never be allowed to happen again.”
This statement seems to contain three broad assertions:
- British military investigators treated Iraqi civilians preferentially to UK armed service personnel;
- This stemmed from a desire to please supranational organisations, juxtaposing (miscalculated) international loyalties with (dutiful) patriotic ones;
- Members of the armed forces deserve preferential legal treatment and the IHAT process, which resulted in no prosecutions, was too burdensome on military personnel.
This report does not have the space to discuss the validity of these claims, in relation to IHAT. However, it is clear that they are certainly not true for Operation Northmoor.
Failure begets failure
The obstructive practices and institutional shortcomings detailed above help build an understanding of how the RMP has failed on so many occasions to find justice for victims.
Historical inquiries are inherently impaired compared to contemporaneous investigations. But they become the only option to achieve justice when allegations are improperly examined right after the offence. This much was pointed out by then Veterans Minister, Johnny Mercer MP. In January 2020, he told Parliament: “It is a matter of deep personal regret that the original RMP investigations were flawed and that opportunities to hold those responsible to account may now have been lost.
“For this, I unreservedly apologise to those who suffered treatment at the hands of UK forces that was simply unacceptable, and I apologise to our servicemen and women who have, as a result, had years of investigations foisted upon them, having more often than not had nothing to do with the incidents in question.”
On the 17th June 2021, Mr Mercer was interviewed on Conservative Home. In response to a question at minute 40 where Mr Mercer was asked if he was of the view that we know everything about that was ‘done wrong’ by British Forces in Afghanistan and Iraq, Mr Mercer replied:
“I have to be really careful here. No, we don’t know what happened. And I formally wrote to the Secretary of State on my position on this subject. He knows that and he makes his own decisions. We’re the only country in the Five Eyes who has not prosecuted someone for doing something wrong in Afghanistan. Do we therefore think: ‘hmmm, all of our blokes didn’t succumb to the pressure that other countries did?’ or do we think ‘we might have a bit of a problem with our investigatory standards?’”
AOAV asked the MOD, in November 2021, for the correspondence between the former Parliamentary Under Secretary of State (Minister for Defence People and Veterans) and the Secretary of State for Defence in relation to potential wrongdoings by British troops in either Iraq and Afghanistan. At the time of publication, almost a year later, that correspondence has not been released.
The truth is that much resides in obscurity. Despite paying compensation for 289 civilian deaths in Afghanistan between 2006-14, for instance – as revealed by an AOAV investigation – the true number of British linked deaths of civilians is estimated to be far greater.
In 2011, the MOD revealed that they had launched 99 investigations into “incidents in which Afghan civilians have allegedly been killed or wounded by British military personnel in Afghanistan”. These included 21 “shooting incidents”, some of which were fatal, as well as 16 alleged assaults of Afghans who had been captured and detained by British forces.
Despite this, other Freedom of Information requests by AOAV revealed that just 17 UK military personnel have been charged and less than half of those (eight) convicted in relation to civilian harm in Afghanistan. Just one of these relating to a fatal incident, the much-publicised case of Marine A – this despite almost 300 civilian deaths, including many children.
Allegations arising from conduct in Iraq led to 23 charges for civilian casualties caused recklessly but resulted in just six convictions at Courts-Martial.
Furthermore, a Freedom of Information request to ascertain how many complaints were made to the RMP at any time in the last 11 years in relation to the treatment of civilians by British troops in Afghanistan during 2010 and 2011, showed there were 115 cases where the RMP were made aware of allegations. In all but three of those cases, no action was taken or was not recorded; two led to detention, the other to a fine and demotion. Less than 2% of allegations led to prosecutions.
In three-quarters of cases, no referral was made by the Service Police. Just 11 of the 115 cases were referred to the Service Prosecuting Authority (SPA). Of those, two resulted in conviction with detention, the other two resulted in a fine and demotion.
Over nearly a four year period, between March 2010 and Jan 2014, only 36 incidents of mistreatment of Afghans were actually referred to the RMP for investigation. Of those, 52% (19) were dropped due to insufficient evidence.
One of the most shocking incidents, which thankfully wasn’t fatal, involved a hung-over soldier stabbing a ten-year-old boy with a bayonet in the Nad-e Ali district of Helmand in 2010. According to prosecutors, Grenadier Guardsman Daniel Crook “drank a considerable quantity of vodka which was sent to him in a mineral bottle contained in a welfare parcel”. Crook had his gun confiscated as a safety measure but was still sent out on patrol.
Armed with a bayonet, he was approached by the boy, Ghulam Nabi, who was asking for some chocolate. “In response Crook took hold of the boy’s shoulder and stabbed him in the region of his kidneys with his bayonet. Crook felt the bayonet pierce the boy’s skin but did not see if he was bleeding,” prosecutors said. He was rushed to hospital and survived.
Crook was convicted of Occasioning Actual Bodily Harm (ABH) and sentenced to 18 months detention and was dismissed from the military.
In the case of Marine A and Crook, both committed the offences in broad daylight and immediately admitted what they had done to their colleagues, one even on camera. The evidence to ensure a charge and prosecution would’ve been instantly apparent and available to the RMP.
Cover up in Kenya?
Yet, even when a soldier admits to committing murder immediately to his colleagues, this does not guarantee prosecution – as the case of Agnes Wanjiru, a vulnerable young woman in Kenya, shows.
An investigation by The Sunday Times in October 2021 detailed a murder confession in March 2012 from a soldier to his colleagues while they were in a local hotel that was regularly frequented by troops for use of prostitutes. The soldier either stabbed or choked Agnes to death and dumped her body in a septic tank. Soon after, he then confessed to the act and showed other members of his unit her corpse.
According to the testimony of one whistleblower, who was at the hotel that night and was shown the body, all witnesses were told to never speak to any investigators about it. He also alleges that he took it further up the command chain yet nobody took it seriously. The murder was an open secret within the unit but, he claims, he has never been spoken to by British military, civilian police or Kenyan authorities about it.
In 2017, a Kenyan judge ordered an inquest into the death and called for an apparent cover-up to be investigated. In response to the reporting, the MOD stated that the Serious Investigations Branch of the RMP had conducted some initial enquiries in 2012, but it is apparent that these didn’t involve interviewing key military witnesses, such as the whistle-blower.
AOAV looked more closely into this event, and found social media posts from the time where it seems that British Army personnel joked about the event. Posts on the military-dedicated forum involve men ‘joking’ that one way to manage “sh*****g the locals” was to “kill them and shove their body in a septic tank.”
Another post from 2013 explained how soldiers based in Kenya are pretty much “confined to the camp these days” due to the “prozzie septic tank incident”, suggesting that senior British military personnel knew about the killing at the time. Many of the posts use language that is too graphic to publish.
A 2012 thread published after the news of Wanjiru’s disappearance included men discussing the likely outcome of her death.
“The s**t will hit the fan over this one,” wrote one poster, linking to a Sky News report of the allegations at the time. “It’s likely that the punishments for whatever happened have already been handed out and this will be brushed under the carpet,” wrote another.
A third poster agreed that this is “how it works”, before ‘joking’ that when he “butchered a prostitute” he was rewarded with parades and extras. In response, another member ‘joked’ that after being caught with a woman’s “blood-stained” underwear and a “shovel”, his “red book” was lowered from “exemplary” to “satisfactory.” This is not to suggest such events happened, but that the death of a young woman was deemed acceptable to mock.
The tragic incident of the death, and the widespread discussion of it at the time, raises some serious questions about the integrity or competence or capacity of the RMP, as well as those commanding officers in the Duke of Lancaster’s Regiment who were out in Kenya during this time.
Such concerns are not just held by AOAV. The Centre for Military Justice demanded that due to the RMP’s proximity to the original failed investigation, they should not be in charge of the current one. A different branch, from the RAF or Navy Police, should co-lead with a civilian force, they suggested.
“If the RMP was anywhere near this case and declined to push for the fullest investigation possible, then even presentationally, they ought to be asked to step aside now. This is not a time for the military police to get territorial,” they wrote.
Reforming the Wrong Way
Despite all the interrogative failures and structural flaws in the military’s investigations of serious crimes against innocent civilians, the only legislative move Conservative governments have made arguably further limits, not increases, the possibility for justice in these cases.
The Overseas Operations Bill was a heavy-handed attempt to implement a 2019 Conservative Manifesto pledge to tackle apparent ‘vexatious’ claims against members of the armed forces. It placed a de facto five-year statute of limitations on crimes committed by British personnel abroad, by implementing a statutory presumption against the prosecution of British personnel five years after the offence was reported.
It was championed by the then Veterans’ Minister Johnny Mercer who, when quizzed by MPs, could not point to an actual case of a vexatious prosecution. When then asked by Parliament’s Joint Committee on Human Rights “what he meant by vexatious prosecutions brought by the [Ministry of Defence] against armed forces personnel”, its report cited that Mercer “seemed not to understand the question”, as he treated civil claims and criminal prosecutions as if they were synonymous.
The underlying logic of the Bill was questioned by the Committee in its report: “It is difficult to understand why the MoD is legislating to limit the ability of its own prosecutors to bring prosecutions when so few prosecutions have been brought, and when there is no suggestion that prosecutions brought by the Service Prosecuting Authority have been vexatious.”
Eventually, due to an amendment passed in the House of Lords – put forward by Labour peer George Robertson – the war crimes of genocide and torture were included as exemptions in the legislation, alongside sexual offences. But the Government fought against even this alteration.
Lord Robertson said the Bill in its original form was “outrageous” and “apparently legitimising torture”. He told the House of Lords: “For the first time in the history of British law, we would be creating a two-tier justice system where troops acting for us abroad would be treated differently from other civilians in society.”
Part 2 of the Act still creates a six-year time limit for civilians to sue the MOD for wrongdoing, such as torture. This means if the claim is not brought promptly, which can often be the case in conflict zones, then victims of wrongdoing may be blocked from getting justice.
Ironically, the Bill may increase the likelihood that British personnel are prosecuted, but internationally rather than by the MOD. The International Criminal Court (ICC) asserts that all nations have a ‘duty to investigate’ allegations of war crimes. If this duty is neglected, that is when the ICC steps in.
Coincidentally, perhaps, whilst the Overseas Operations Bill was being pushed through Parliament, the ICC’s Office of the Prosecutor released its final report on the state of war crimes investigations into British military conduct in Iraq.
The report characterised it as ‘uncontroversial’ to assert that “the initial response of the British Army in theatre at the time of the alleged offences was inadequate and vitiated by a lack of a genuine effort to carry out relevant investigations independently or impartially.” (Point 5, Executive Summary)
Although the report states that there was a “reasonable basis to believe” that atrocities such as wilful killing, torture, inhuman/cruel treatment and rape may have been committed there wasn’t proof that UK authorities had deliberately blocked prosecutions. The report’s author, Fatou Bensouda, was clear to point out that: “the fact that the allegations investigated by the UK authorities did not result in prosecutions does not mean that these claims were vexatious.”
Despite the highly critical report, Defence Secretary Ben Wallace was to be strangely upbeat about it. He said it “vindicates our efforts to pursue justice where allegations have been founded. I am pleased that work we have done, and continue to do, in improving the quality and assurances around investigations has been recognised by the ICC.”
Matthew Cannock, Head of Amnesty International’s Centre for International Justice, said the conclusion of the report “rewards bad faith and delays brought about by the failure of the UK military and authorities to conduct independent and impartial investigations into allegations in the immediate aftermath of the conflict in Iraq.”
The institutional and political obstacles put in the way of investigations of military crimes by the UK government are substantial. In fact, as the next section explores, Britain appears to be the least likely NATO force to prosecute their own.