15th December 2022
Now this is something interesting.
Very interesting.
As reported by Joshua Rozenberg, a senior judge has been appointed to head a full statutory inquiry to “investigate into and report on alleged unlawful activity by British armed forces in their conduct of deliberate detention operations (DDO) in Afghanistan during the period mid-2010 to mid-2013”.
The terms of reference, which should be read carefully, are here.
There are usually formidable barriers to any such investigation taking place – legal, political, and cultural.
Of these, the cultural barrier is always the hardest to clear.
Any allegation of wrongdoing by our armed forces – and also our security and police forces – is usually first met by denialism: we are the goodies, and these things would not be done by us.
Then there is derision: how dare you criticise those in the battlefield and on the front line from the comfort of your armchairs.
(This response is often deployed even when the alleged wrongdoing is far away from the battlefield or the front line, and is in respect of the treatment of captive non-combatants and civilians.)
Next will come the misdirections: counter allegations and smears about ambulance-chasing lawyers and compensation-seeking clients.
(And, indeed, there can be bad lawyers, just as there can be bad soldiers and bad police officers and security operatives, for there is good and bad in every profession – it is just that some professions are more accepting of this possibility.)
Once these barriers of denial, derision and misdirection are cleared, and the facts and evidence are incontestable, then there will come the shrugs of “so what?” and the assertions of moral equivalence.
Such things do not matter, we will be told, and everyone does it.
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What there will rarely be is anyone actually being held properly to account.
The cultural presumption against any wrongdoing by our armed forces – and by our security and police forces – is so powerful that they hardly need any formal legal immunity.
But.
Something is up here which means the government is not even attempting to deploy denial, derision or misdirection.
Maybe the government knows that such things will not wash here.
The government has instead gone to appointing a highly-regarded judge with an outstanding reputation and given him the strongest possible legal powers.
This would not be done lightly.
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This inquiry will be worth watching carefully.
Perhaps nothing is afoot.
Perhaps there is nothing to see here.
But for some reason the government does not think that denial, derision or misdirection will be enough for disposing of this matter.
So this inquiry is interesting.
Very interesting.
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POSTSCRIPT – 16th December 2022
Shrewd comments here https://t.co/vieweNajHv by David Allen Green on my piece yesterday about the appointment of a statutory judicial inquiry into allegations that British special forces unlawfully killed detainees in Afghanistan a decade ago.https://t.co/oH8rFvzYk3 DAG is right pic.twitter.com/rnxXr1HWMJ
— Joshua Rozenberg (@JoshuaRozenberg) December 16, 2022
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These law and policy posts are also crossposted on my new “law and lore” Substack.
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Those familiar with Bloody Sunday and the Ballymurphy massacre in Northern Ireland and the failure to hold all those responsible irrespective of rank to account will not be surprised by your comments.
Template for most UK government enquiry publications:
1. No single person is to blame.
2. Lessons have been learned.
3. Er…that’s it
“concerns expressed within and to the British armed forces”. The “within” is particularly interesting.
Is it reasonable to suggest that the Government feel more comfortable with such an inquiry given the amount of time that’s passed?
No, as an Inquiry has very strong evidence-gaining powers. A government would be far more comfortable not having such an inquiry.
Usually when these things are accepted it’s done late enough to be able to brush them off as historical anomalies which wouldn’t happen now (Kenya, Bloody Sunday, …), so it is heartening that a relatively recent case is being tackled.
Political reactions to cases where it is Our Guys (who are always, by definition, The Good Guys) represent a key test of whether rule of law is seen as a fundamental principle to be applied universally, or merely a contingent one to be deployed selectively (even if very widely in normal practice).
See also, e.g., EU RoL-blindness to Frontex actions and Member State pushbacks.
The foundational custom has been destruction of evidence. It’s documented in Ian Cobain’s book The History Thieves (excerpt here: https://republican-news.org/current/news/2016/09/the_history_thieves.html). It’s likely safe to conclude that incontrovertible evidence exists and is beyond the reach of those who’d prefer it didn’t.
There’s two things I’m quite interested in here – and I’d very much appreciate your view.
The Gibson inquiry into rendition was shut down because there were concurrent criminal inquiries. Is that a risk here? As far as I know there are no criminal investigations, but could that change?
Second, the National Security Bill has clauses relating to damages. I wonder if that would have an impact on the court cases that caused this inquiry to be called. My reading is that it would.
Thanks, as ever!
PS: Have crossposted this comment onto your substack.
I wonder how much the fact that Afghanistan and Iraq are Tony Blair (and Labour)’s wars plays into this? Could this be done and dusted just in time for the next election?