On Tuesday 19 September the Ministry of Defence (MoD) announced changes to the terms of reference of an independent inquiry that has made UK Special Forces the subject of an investigation into a series of potentially unlawful killings that happened in Afghanistan between 2010 and 2013.
Current and former Special Forces personnel retain privileges in court to remain anonymous and to deliver secret testimony, an arrangement that has raised concerns about any accountability for their actions given the lack of transparency.
However, the legal teams representing the bereaved families have been fighting for the evidence of the killings to be heard publicly. Tuesday’s change in the terms of reference for the Inquiry is a product of these efforts, following a statement from the Secretary of Defence Ben Wallace in July that Special Forces were involved in the events under investigation.
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Lord Justice Haddon-Cave, the judge presiding over the Inquiry, was reported by the Guardian to have taken this acknowledgement as “a welcome development”, but stated on 21 August that there are strong national security reasons to grant restrictions on the publication and disclosure of sensitive evidence relating to the UK Special Forces, but that applications for specific restrictions will be conducted on a case-by-case basis as the Inquiry progresses. The ruling will leave legal teams for the bereaved families leaning on arguments of public interest to have the evidence disclosed.
The parochial secrecy of Special Forces
During the last preliminary hearing of the Inquiry it was stressed that the avowal of Special forces involvement, made in agreement with the Cabinet Office, is not intended to act as a precedent. The UK Government has a long-standing ‘no-comment’ policy regarding Special Forces operations. As a result of this disclosure, the numerous references to the British Army in the terms of reference have been replaced by references specifically to the Special Forces – a term that includes the SAS, SBS and other elite units including the SRR.
French officials have often maintained the same policy as the UK for refusing to go into detail on any subject regarding Special Forces operations, but these two nations make for a narrow community among international partners. The contrast is strong with nations such as the US and Canada, that encourage transparency even in the conduct of operations where squadrons perform a single mission such as a target elimination, and the service personnel take on certain level of risk from reprisal for disclosures.
Abigail Watson, writing for The Strategy Bridge, argues that the culture of secrecy is to the UK’s detriment, as it limits the capacity for institutional learning, as MP’s are not routinely briefed on the operations of Special Forces, unlike lawmakers in the US.
Watson also notes that the Former Chair of UK Foreign Affairs Select Committee, MP Crispin Blunt has questioned the nature of the secrecy shrouding Special Forces: while accommodations can be made for protecting Special Forces following a single mission, Blunt argues that it is untenable to retain secrecy for more protracted operations. “If you’re running a strategy and you’re using special forces to do it – and you’re doing it over a prolonged period – you’ll get into the position we’re getting into now, which is that there is a consistent pattern of open source reporting on it”, he was reported to say by Middle East Eye.
An analysis of Hansard conducted by Action on Armed Violence (AOAV) throws into question the validity of the ‘no-comment’ policy the government has adopted towards Special Forces operations, stating that up until 2020, Special Forces had been discussed in the official record of the Palace of Westminster on at least 210 occasions since 1941, with 80% of these instances occurring after 1982, and half after May 2001. AOAV point out that although it was common refrain after 1988 to hear “the MoD’s long-held policy is not to comment on Special Forces”, this has not been demonstrated to be true in all cases.
The Independent Inquiry relating to Afghanistan
The current Inquiry is the result of years of judicial review procedures initiated by the families of eight Afghan civilians killed in night raids on their homes by UK personnel in 2011 and 2012.
Saifullah Gharab, a relative of four men killed in a night raid on 16 February 2011, filed judicial review procedures against the MoD in 2019 for failing to conduct a prompt and effective investigation into the circumstances of the killings.
Relatives of four Noorzai family teens who were shot and killed in a similar night raid event on 18 October 2012 filed judicial review proceedings against the MoD in 2020, alleging that it had failed to conduct a prompt and effective investigation into the circumstances of their deaths.
Former Secretary of State for Defence Ben Wallace fought both sets of judicial review procedures in court for years. However, in 2022, he requested a stay of proceedings, claiming that a public investigation into the deaths in question would look into the accusations.
According to documents revealed during these proceedings and cited in open court, British soldiers questioned the official accounts of the Claimant’s relatives’ deaths in the Saifullah case.
According to documents released by the MoD at the time, a newly qualified officer expressed concerns to the 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. 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 from August 2010 to September 2012 was quoted as having reservations about how the cases were handled: “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.”
The Inquiry will look into four issues: whether the Royal Military Police investigations, Operation Northmoor and Operation Cestro, were carried out properly and effectively; whether 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 hidden. The investigation will also seek to determine what lessons can be drawn.