Byline Times asks: was justice a victim of the war in Afghanistan?

An article was published on the Byline Times on 17^th October 2022 stating that new data shows how complaints against the UK military in Afghanistan were highly unlikely to be prosecuted. The data in question was that 94% of complaints from civilians were not prosecuted; on the face of it an alarming statistic. This arose from 115 cases between 2010 -2011 deemed serious enough for the Royal Military Police (“RMP”) to investigate of which 14 were referred to the independent Service Prosecuting Authority (“SPA). These statistics were backed by the anonymous complaints of a form RMP member who complained of obstruction and “regimental amnesia”.

The article then goes on to highlight two cases which it appears were significantly undercharged. One involving apparent sexual assaults on children dealt with summarily in theatre as conduct prejudicial to good order and service discipline, and another involving a stabbing which was dealt with an assault occasioning actual bodily harm at a Court Martial.

On the face of it, this is a picture of disgraceful failures by Her late Majesty’s Forces and the Service Justice System. However, when one looks more closely the article fails to properly contextualise the issues and also fails to raise significant questions about its “star" (anonymous) witness.

Firstly, the hurdle for referral to RMP is generally quite low, especially in war time when a CO (who might have other matters to deal with) can request the assistance of RMP with any investigation. The suggestion is there was some filtration process before cases reach RMP although no evidence of what that process was is offered. The fact of an RMP referral does not indicate the allegation has merit.

Secondly no thought is given to the general challenges of investigation, establishing identity of alleged perpetrators and victims, locating admissible evidence and establishing mens rea. This is before the service specific issues are dealt with, self defence takes on a very different character in an asymmetric conflict and to convict mistaken self defence must be ruled out, and the force must be shown to have been excessive (in an environment where automatic weapons and explosive devices are the norm). The realities of combatting an insurgency are also not considered when it comes the investigation. Obtaining forensics and undertaking finger tip searches would require a large area to be locked down with forces already heavily stretched and, at the relevant time, under equipped to deal with the IED threat. The authors presume that such an effort would possible and that commanders would willingly risk lives in pursuit of these investigations. Without knowing how reasonable were RMP’s suspicions or the gravity of the offences under investigation.

The anonymous source paints a more sinister picture of what might be considered prudent command decisions, suggesting commanders deliberately sent witnesses on R&R so as to be unavailable and denied RMP transport. If these allegations are true then they constitute an offence of perverting the course of justice, an offence which carries a maximum sentence in the UK of life imprisonment. It is also an offence without any statute of limitations and for which (with the leave of HM’s Attorney General) retired service personnel can face Court Martial for. This begs the immediate question then, why is the anonymous source going to journalists rather than to RMP or even the Ministry of Defence Police? A closer look at one of the allegations raises a further question. A soldier on R&R remains subject to service discipline. RMP have units in the UK and Germany who could have been asked to question witnesses on R&R if the matter was time sensitive or they could be questioned upon their return. In short if this was an attempt to pervert the course of justice, it would only be effective due to lack of RMP effort. Therefore, the reader may wish to treat these anonymous allegations with some caution.

This is not to say that the article does not raise a serious issue and it is one that all ISAF forces have struggled with, as is demonstrated by the on going investigations into the Australian SAS. Balancing the needs of investigators with those of commanders is always difficult. Finding that balance is vital if the nations involved wish to remain “the good guys”.

The cases cited in the article which reached conviction do suggest failings by the Service Justice System. On the face of it two sexual assaults were dealt with summarily rather than being referred to the RMP and SPA. The article gives few details but from the facts it can be asserted that such an offence would certainly be referred to RMP, indeed the commander who did not refer it would themselves commit a service offence. However, what was not clear is what evidence RMP could have obtained? Were the children identified? Was their account taken? Again, the problems of investigating in combat are not considered. A similar evidential challenge potentially emerges in the case of Gdsm Cook who was convicted of piercing the skin of a boy with his bayonet. It may have been that the medical evidence to prove grievous bodily harm was missing, leaving prosecutors no choice but to prosecute ABH; we do not know. Byline links to a Guardian article who quotes the boy’s father but his (non expert) account would not suffice to prove the level of injury (although it would be sufficient to prove the fact). No such challenges existed in the case of Marine A who was captured on camera shooting his victim. In that case the SPA secured a conviction.

This is an article which raises serious issues which need to be reflected upon before HM Forces ventures again into expeditionary warfare. However, it does not properly address the challenges posed to investigators by the fog of war and the risks of combat. That’s a great pity because a serious subject is reduced to sensationalism which does not stand up to much scrutiny.