Alleged UK War Crimes in Afghanistan

The Alleged Crimes and the Australian Parallels

An investigation by the BBC television news program Panorama has reported that U.K. “SAS operatives in Afghanistan repeatedly killed detainees and unarmed men.” Intentionally killing detained persons or those hors de combat would obviously be a war crime. The U.K. Ministry of Defence has described this reporting as “irresponsible, incorrect” in part because such allegations have “been subject to two investigations by military police, which resulted in no prosecutions.” Nonetheless, the BBC’s own ballistics investigation of a number of the sites in which executions are alleged to have occurred revealed bullet holes consistent with shooting targets low to the ground from above, rather than a firefight.

There is an obvious parallel here with recent Australian history, in which a major inquiry into the conduct of Australian special operations personnel in Afghanistan – commonly referred to as the Brereton report – was triggered in part by the broadcast on national television of head camera footage showing the execution of an unarmed Afghan man in a field, Mr. Dad Mohammad. This shocked Australian military leadership and forced an independent investigation of long running rumors of criminal misconduct. The Brereton Report recommended that 23 incidents involving 39 killings by 25 Australian personnel of unarmed or detained persons be referred for prosecution. This has resulted in the establishment of the Office of the Special Investigator (OSI), a federal unit charged with prosecuting any Australian war crimes before ordinary courts. Its work has undoubtedly been assisted by the extraordinary and long-running legal spectacle of the Ben Roberts-Smith defamation trial, in which a former, highly decorated, Australian Special Air Services Regiment (SASR) corporal is suing a number of news outlets for reporting that he was potentially a war criminal. The evidence heard in the trial has possibly done more damage to Mr Roberts-Smith’s reputation than the original reports. At least one of Roberts-Smith’s witness has been detained by OSI investigators.

Indeed, the parallels with the Australian SASR experience are so obvious that the BBC Panorama program opens with the helmet camera footage of the notorious execution of Mr. Mohammed. One interviewee – Dr Samantha Crompvoets, who made a preliminary investigation into SASR culture in 2015 – attests to rumors at that time that “what the Australians are doing was nothing compared to what the UK and US are doing.” The BBC reports that “[s]everal people who served with special forces said that [U.K.] SAS squadrons were competing with each other to get the most kills,” and that during a six month tour of duty one squadron killed a number of people running to “triple figures” all with no SAS operatives being injured.

If detained persons posing no threat were routinely being killed, allegedly as matter of implicit policy, how were special forces operators getting away with it? Perhaps unsurprisingly, it appears they were using the same playbook uncovered in the Australian investigation involving the use of “throwdowns” and false incident reporting.

“Throwdowns” are simply weapons or communications equipment planted on a body after the fact to suggest direct participation in hostilities (DPH) by the deceased and therefore a lawful killing. If evidence of DPH is enough to deter further inquiry, there is an incentive for bad actors to adopt (or independently invent) the technique. One would expect false reporting – usually a military offense in itself – to be harder to prove. However, what tends to happen once group members decide they are above the law is the use of minimally convincing “boilerplate” language more or less copy-pasted between reports.

BBC reporting speaks of officers reacting with “disbelief” at frequent reports of Afghan men being detained, but then being allowed to return inside buildings where they would suddenly grab a “concealed” AK47 or grenade. Internal emails reviewing these reports used language such as “this is the 8th time this has happened … You couldn’t MAKE IT UP!”

Command Responsibility

If such facts can be made out, the war crime of murder follows readily. The more complex legal questions are what was required of commanders and where does potential liability stop?

I have explored how command responsibility may apply to Australian war crimes in Afghanistan with my co-authors Joanna Kyriakakis and Mel O’Brien here. The same principles apply in the U.K. case. Both States are parties to the Rome Statute of the International Criminal Court. Under Article 28 of the Statute commanders are responsible for the crimes of subordinates if they “either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes” and failed to prevent or punish those crimes. The wider form of responsibility is obviously the “should have known” standard and it operationalises the responsibility placed upon commanders by Article 86(2) of Additional Protocol I (API) to the Geneva Conventions 1949. While the Australian Commonwealth Criminal Code introduces some uncertainty by replacing the words “should have known” with “reckless as to,” s 65 of the U.K. International Criminal Court Act directly incorporates the Rome Statute and API “should have known” test. In asking how s 65 might apply to the allegations in the U.K. we can therefore look to international case law for guidance.

Unfortunately, the international jurisprudence is not entirely settled. However, one can suggest the “should have known” threshold is met when a commander either: (1) fails to take necessary measures to secure knowledge of their subordinates’ conduct; or (2) possessed sufficient facts to put them on notice that further inquiries should be made but did nothing. I will focus on the second approach, which I will refer to as a duty of due diligence or duty of further inquiry.

It does seem in the U.K. case that concerns were raised and went up the chain of command and resulted in an internal investigation. But the investigator “appeared to take the SAS version of events at face value” and the final version of his report was “signed off by the commanding officer of the SAS unit responsible for the suspicious killings.”

The damning part of the BBC report for the chain of command suggests, in a passage worth quoting at some length:

In 2012, General Carleton-Smith was appointed head of UK special forces. The BBC understands that he was briefed about the suspicious killings, but he allowed the squadron to return to Afghanistan for another six-month tour. When the Royal Military Police launched a murder investigation in 2013 into one of the raids conducted on that tour, General Carleton-Smith did not disclose to the RMP any of the earlier concerns over unlawful killings, or the existence of the tactical review.

It continues: “Internal emails show that officers at the highest levels of special forces were aware there was concern over possible unlawful killings, but failed to report the suspicions to military police despite a legal obligation to do so.”

There thus seems to have been sufficient grounds to suspect possible wrongdoing, grounds which would seem to have necessitated further enquiry. Under these conditions, the failure to either cooperate with RMP investigations – or indeed to initiate them – could be enough to meet the “should have known” due diligence standard. A predicate of convicting someone based on command responsibility is proving that a war crime actually occurred. However, if even a handful of U.K. crimes in Afghanistan can be proved – perhaps as few as one – then the evidence apparently available should make those in the chain of command very nervous. Every commander who did not report serious concerns upward or, where obliged to do so, to the RMP could face charges based on command responsibility. That an internal inquiry occurred is certainly evidence supporting the idea that higher command did what was required, but whether that inquiry was sufficiently rigorous seems open to question. Further, even without a war crime being proved there may be a separate criminal case for commanders to answer based on failure to give evidence to the RMP.

A final question we might ask is the significance of the two military police investigations that resulted in no prosecutions. Are these conclusive proof that a case beyond reasonable doubt could not be made in U.K. courts? The RMP investigation into alleged British crimes in Afghanistan, Operation Northmoor, ran from 2014-2019. Did it have the time and resources to do its job? First, the BBC reporting suggests there was much more than passive non-cooperation between special forces command and the RMP. The allegation is that incriminatory reports were filed as “anecdotal accounts” of unlawful killing and were then classified and locked away from RMP investigator access. If true, such wilful ignoring of – indeed, active concealment of – evidence would speak directly to the “should have known” standard and failure in the duty of further inquiry. RMP insiders also reported to the BBC that they were pressured or ordered to drop certain cases and being blocked from reviewing drone footage. Second, all international criminal investigations are hampered by the passage of time and difficulties accessing physical evidence. That said, the BBC seemed able to uncover fresh potential ballistics evidence with a site visit, albeit a Taliban-sponsored one.

The picture painted is a very worrying one. One might hope the Australian example will be followed in one further respect: the establishment of a special investigatory and prosecutorial body outside the military with a remit to pursue criminal accountability from the patrol level right up the chain of command.

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Douglas Guilfoyle is Professor of Law and International Security at the University of New South Wales Canberra at the Australian Defence Force Academy and a 2022-2025 Australian Research Council Future Fellow.

Photo credit: Senior Airman Kenneth Holston, U.S. Air Force