A statutory inquiry was launched on 22 March into claims that British Special Forces in Afghanistan murdered innocent civilians and engaged in a cover up of the deaths.
Extrajudicial killing allegations involving elite British forces in Afghanistan between 2010 and 2013 will be investigated, as will the response of the UK Ministry of Defence (MoD) and the Royal Military Police to those allegations. The inquiry will be chaired by senior Court of Appeal Judge Lord Justice Haddon-Cave and will have the power to compel witnesses to give evidence.
“It is clearly important that anyone who has broken the law is referred to the relevant authorities for investigation; and equally, those who have done nothing wrong should rightly have the cloud of suspicion lifted from them,” said Haddon-Cave. “This is critical, both for the reputation of the Armed Forces and the country.”
“The public, and all those who serve in the military, are entitled to expect a fair, fearless and thorough examination the facts and clear answers to the questions raised.”
Given the national security dimensions to this inquiry, it is doubtful that it will be possible for anyone outside of the inquiry team to be present during evidence sessions with members of the special forces.
This inquiry is the result of years of judicial review procedures launched by the families of eight Afghan civilians killed by UK personnel in night raids on their houses in 2011 and 2012.
It is entrusted with investigating four issues: whether the Royal Military Police investigations, Operation Northmoor and Operation Cestro, were performed properly and effectively; if there is convincing evidence that members of the British military services committed unlawful killings in Afghanistan between mid-2010 and mid-2013; and whether the facts of any such unlawful killings were ever concealed. The inquiry will also seek to ask what lessons are to be learned.
“I have set a challenging timetable and wish to stick to this, if at all possible, since, in my view it is very important that this Inquiry reports within a reasonable timeframe,” said Haddon-Cave. “In order to do this, I am looking for – and need – everyone’s assistance and co-operation.”
Haddon-Cade has been in contact with counterparts in a similar inquiry conducted in Australia, one that this week led to an Australian SAS soldier being charged for war crimes.
“I want to take this opportunity today to put out a call for evidence. I would urge anyone, who has got any information or material, which they think may be relevant to the Inquiry, to please get in touch with the inquiry team as soon as possible. They can do so confidentially via the inquiry’s website, which has just gone live, today.”
British soldiers sceptical of official account of killings
In 2019, Saifullah Gharab, a relative of four men slain in a night raid on 16 February 2011, filed judicial review procedures against the MoD for failing to conduct a fast and effective inquiry into the circumstances of the killings.
According to documents revealed during these proceedings – and cited in open court – British soldiers voiced scepticism about the official accounts of the deaths of the Claimant’s relatives in the Saifullah case.
In contemporaneous documents disclosed by the MoD, a newly qualified officer reported concerns to Special Forces Operations Chief of Staff: “During these operations it was said that all fighting age males are killed on target regardless of the threat they posed. [T]his included those not holding weapons…In one case it was mentioned a pillow was put over the head of an individual 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 when they were killed…”
The Special forces Officer Commanding for August 2010 to September 2012 was mentioned as also having doubts about the handling of the cases: “I find it depressing that it has come to this… Ultimately a massive failure of leadership. If we don’t believe this, then no one else will and when the next Wikileaks occurs then we will be dragged down with them.”
It is not the function of the inquiry to identify civil or criminal culpability, however, this should not prevent the Inquiry from reaching factual conclusions pertinent to its mandate, and for Haddon-Cade to make recommendations.
It is understood that Haddon-Cave will be looking carefully at the terms of the legislation the government has introduced, within the Overseas Operation Bill, that appears to have put into place a statute of limitations of five years, potentially guarding service people suspected of committing a crime from undergoing prosecution.
“My relatives and friend were each shot in the head as they sat drinking tea.”
Member of the Noorzai family.
Further questions remain to be answered surrounding the National Security Bill that is currently in its final stages before being put to a final vote. It contains the controversial amendment, Clause 28, that would offer personnel in the armed forces and intelligence services immunity from prosecution for crimes committed overseas that were in the course of duty.
Relatives of four teens from the Noorzai family who were shot and killed in a similar night raid event on 18 October 2012, filed judicial review proceedings against the MoD in 2020, with similar claims that it had failed to conduct a fast and effective inquiry into the circumstances of their killings.
For years, the Secretary of State for Defence fought both sets of judicial review procedures in court. In 2022, however, he asked to stay the claims, arguing that a public investigation into the deaths in question would examine the accusations.
“None of those concerns were passed to the service police contemporaneously.”
Tessa Gregory, partner at Leigh Day
In 2022, upon announcing the decisions to hold the independent inquiry, a member of the Noorzai family reflected on the events under question: “Over ten years ago I lost two of my brothers, my young brother-in-law and a childhood friend, all boys with a life ahead of them.
“I was handcuffed, beaten, and interrogated outside our family home by British soldiers. My relatives and friend were each shot in the head as they sat drinking tea.
“My family has waited 10 years to find out why this happened. We are happy that finally after so many years someone is going to investigate this thoroughly. We live in hope that those responsible will one day be held to account.”
Tessa Gregory, a partner at Leigh Day, the legal firm representing both the Saifullah and Noorzai families expressed the view that this inquiry would not have come about except as a result of the revelations from the earlier legal action: “Our clients have been fighting for years to find out what happened to their loved ones.”
“When they first issued these judicial review proceedings the Secretary of State for Defence contended that our clients’ pleas for a fresh investigation into the killings of their relatives were unarguable and sought to have their claims dismissed outright.
“Yet it is the Ministry of Defence’s own documents, which came to light because of these legal proceedings, that has led to today’s unprecedented admission that there needs to be a full statutory inquiry into these allegations.
“Those documents show that members of the British army, including at the highest level, were raising serious and sustained concerns that UK Special Forces were carrying out extrajudicial killings in Afghanistan. None of those concerns were passed to the service police contemporaneously.”
