Was Justice a Victim of the War in Afghanistan?

Was Justice a Victim of the War in Afghanistan?

New data shows how complaints against the UK military in Afghanistan were highly unlikely to be prosecuted, report Iain Overton and Murray Jones

The ‘War on Terror’ was promised to deliver democracy against tyranny – a two-decade-long response to 9/11. But what happens if, infighting for it, the democratic process itself became a victim?

This question has been raised in a recent investigation into the UK’s military actions in Afghanistan – one that raises major concerns. Could a failure to impose the rule of law following allegations of abuses by British troops have undermined the very mission they were sent to accomplish?

The revelation is that the UK military failed to prosecute 94% of complaints it received in relation to mistreatment of civilians during the height of fighting in Afghanistan. The analysis, undertaken by the London-based charity Action on Armed Violence (AOAV), goes to the heart of whether democracy could ever have been exported down the barrel of a gun.

During the vicious combat that defined the war in Afghanistan in 2010 and 2011, there were 115 cases where the Royal Military Police (RMP) were made aware of substantial allegations that Afghan civilians had been allegedly mistreated by British troops. These were 115 accusations that were serious enough to merit an investigation, at least.

A Freedom of Information (FOI) request, however, shows that the vast majority of these cases were dismissed out of hand.

In total, just 14 of the 115 cases were referred to the Service Prosecuting Authority (SPA). Of those, seven were prosecuted. Two incidents resulted in conviction with detention; one led to a demotion; one was met with a £1,000 fine; three ended with a not guilty verdict.

As such, over a two-year period, just 3% of serious allegations resulted in convictions.

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A former military police officer, who served in Afghanistan and wished to remain anonymous, said that, at the time, “ground forces in Afghanistan had an institutional culture of covering up crime and obfuscating the work of the Service Police… in order to save or enhance careers.”

The officer told AOAV of deliberate obstruction of police enquiries “when units felt threatened” by investigators. In some cases, serving military personnel who had witnessed the event were allegedly sent on rest and recreation. In others, British service police would be denied transport so as to conduct interviews in theatre.

“Life was made particularly hard if you wanted to do your job as Provost Marshal [the lead British prosecutor in Afghanistan] decently,” the source added.

The failure of the British military to police properly its own has been raised before. Detectives from Operation Northmoor, the MoD’s investigation into civilian deaths in Afghanistan, have previously observed “regimental amnesia” among those they spoke to.

When justice was served, it was thin indeed. Over nearly a four-year period, between March 2010 and January 2014, only 36 incidents of mistreatment of Afghans were formally investigated by the RMP. Of those, 52% (19) were dropped due to insufficient evidence.

The one fine that was issued involved a case of a soldier in December 2011. It was for “placing a three to four-year-old local national boy on his knee and subsequently forced the child’s hand towards his genitalia”. Less than a week later “the same soldier was observed pulling the arm of a seven to eight-year-old local national girl. Having managed to drag the child towards him, the soldier was seen to force her hand towards his genitalia.”

It is believed that there are recordings of a least one of these incidents.

The soldier pleaded guilty to two charges of conduct to the prejudice of good order and service discipline. Despite a repeated offence against a minor, he was fined just £1,000.  It was not noted if there was a demotion in rank for this apparent act of child sexual assault.

One other shocking incident involved a hungover soldier stabbing a 10-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. The boy 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.

The only other soldier sentenced to detention for their conduct was the well-publicised case of Marine A. His murder charge was subsequently replaced with manslaughter and he was released after three-and-a-half years.

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.

In 2011, the MoD revealed that it 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. Such shootings would not necessarily be unlawful if they were deemed to be against a legitimate target.

The investigations featured 16 alleged assaults of Afghans who had been captured and detained by British forces. The alleged victims say they were punched in the face, kicked in the stomach, kneed in the hips and strangled until they blacked out.

Despite these procedures, in other FOI requests from AOAV to the MoD, it was revealed that just 17 UK military personnel have been charged for any criminal incident in theatre, and less than half of those (eight) were convicted in relation to civilian harm in Afghanistan.

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Allegations arising from conduct in Iraq led to 23 charges for civilian casualties, but resulted in just six convictions at courts-martial.

This means that from both theatres, there was a 35% conviction rate of those charged, despite the severity of the offences. However, more precise details are veiled in obscurity.

The MoD paid compensation for 289 civilian deaths in Afghanistan between 2006 and 2014 – as revealed by another AOAV investigation – and the true number of British-linked deaths of civilians is estimated to be far greater.

As far as is known, none of these 289 compensated deaths led to a prosecution.

The description of one such case, #3910, consisted of just one word – “fatality”. The MoD has since disclosed the incident description from the Royal Military Police’s investigation file to AOAV. It reads:

The incident was reported six hours after the shooting, with an initial RMP report produced the next day. A murder charge wasn’t referred to prosecutors for another eight months, in February 2011. Six weeks later they dropped the case.

Based on recently released Government figures, the police and prosecutors’ institutional capacity to deal with investigations is diminishing, it appears.

Indeed, the number of RMP officers for the regular Army decreased by 28% between April 2013 and April 2022, from 1,744 to 1,263. SPA personnel also dropped by 32% in a similar period, falling from 74 in 2012/13 to 50 this year.

Responding to the findings, Executive Director of Ceasefire, Mark Lattimer, said: “Despite military records showing hundreds of serious cases of civilian mistreatment in Afghanistan and Iraq, prosecutions of UK service personnel have been very rare.

“Yet the Government is currently promoting new legislation to limit the duty to investigate in cases of suspected violations of human rights – including the right to life.”

The MoD said: “The UK Armed Forces served with courage and professionalism in Afghanistan and we will always hold them to the highest standards.

“The Service Police carried out extensive and independent investigations into allegations about the conduct of UK forces in Afghanistan and referred a number of cases to the Service Prosecuting Authority, where the threshold for doing so was reached. This resulted in multiple prosecutions.

“The Service Police and the Service Prosecuting Authority remain open to considering allegations should new evidence, intelligence or information come to light.”

The truth may well be that no new evidence will ever come to light – the Taliban’s rule in Afghanistan will frustrate any attempt to find out what really happened to civilians in the killing fields of Helmand.

War, it must be said, is always hell. Death is its natural fodder. But if a war is fought under the banner of justice and democracy, then any such killing by troops in that conflict needs to be property accounted for. The law must be ever-present in the battlefield in order for the war to be a just one.

A failure to do so contaminates not only the virtues that were fought for, but also endangers tarnishing the very memories of British soldiers who fought and died there. They are owed more.