The Killing of an Unknown Afghan Fighter in September 2011: A Breakdown in Battlefield Discipline

What Happened

A patrol from 42 Commando operating from Check Point Omar in the Upper Sangin Valley on 15 September 2011 was tasked to search a nearby compound. On their way back from the compound some fighters engaged another checkpoint, Fallander. An Apache AH was ordered to find and destroy those fighters. It saw one fighter and fired 139 rounds of 30mm cannon. The man was seen to fall, apparently wounded. The patrol was re-tasked to conduct battlefield damage assessment. It was after noon on a hot (50°C) day.

Marine C[i] spotted the wounded man. C was accompanying the patrol commander (an acting colour sergeant[ii]), Marine A. The wounded man was alive and moving slightly; C had him in the rifle sight and informed Marine A. Marine A approached the man and searched him. He had an AK with two magazines and a grenade in a pocket. He was badly wounded and unconscious. They called for assistance and he was dragged to the corner of the field into cover.

A dressing was applied and the patrol debated whether he was still alive. Eventually, Marine A told his command post over the radio that the man was dead. Bio-metrics were taken and the patrol started to pack up. Marine C, who had been covering the man, walked away to take up a position prior to moving off. Marine A then leant over the man and fired a round from his 9mm pistol into his chest. The man writhed, showing that he was clearly alive; he died shortly after.

Those are the bare details. Marines A, B and C were charged with murder; B and C were acquitted, Marine A was found guilty. In his case it turned on whether he believed that the wounded man was dead or alive at the point of the shooting. The Board[iii] decided he knew the man was alive. It is fair to say that signs of life were fleeting and feeble.

We know all this because Marine B wore a helmet camera (privately owned) and recorded it. The videos were found a year later when civil police arrested another marine on an unrelated case and came across them on his laptop. Other witnesses to part of the activities were the AH crew, and by omission the sensors on the PGSS balloon at the checkpoint. The allegation was that the patrol deliberately moved out of sight of both potential witnesses because they intended to kill the fighter.

I was the only member of the public at the trial who had no link to the case. The others present were family, journalists, police and lawyers.

The Issues

Things Have Changed

Things have changed over the years. In his book Bugles and a Tiger, John Masters recorded that the Army recognised that the Pathan fighter wasn’t a full-blooded enemy and ‘accepted with goodwill most of the limitations placed on us, but we always remembered our over-riding duty to the men who trusted us.’ (My emphasis). Words which ought to conclude any orders group given today.

Masters finds the passages to describe this curious warfare. He tells of the savage death and mutilation of a British officer, skinned and castrated alive. The local British brigade commander ordered ‘no prisoners’, and when, to his fury, a wounded tribesman was taken, he ordered that the man should be pegged out, face up in the sun. His body was left where the officer’s skin had been found

The fighters in Helmand behave now much as they did in Masters’ time. We have changed. They, curiously perhaps, would understand the position taken by the brigadier and accept it. We have to accept that there is an asymmetry in morality. But it is also worth remembering another comment by Masters in a later book about the Second War, ‘The Road Past Mandalay’: ‘I have an unalterable conviction that it is quite enough to wound and kill people, without subjecting them to barbarism and indignity’. He was writing about his time as a Chindit brigade commander when he had to order the shooting of his own wounded soldiers.[iv]

The Record

The behaviour of the British Army since WW2 has been good by international standards, but by no means perfect. One massacre by soldiers of the Scots Guards was described in the Guardian of 6 May 2012 as follows:

‘The Batang Kali massacre took place on 12 December 1948, as British troops carried out a counter-insurgency operation against Chinese Malayan communists. The shootings took place after a 16-man patrol group of Scots Guards surrounded a rubber estate at Sunga Rimoh by the Batang Kali river. The bodies of several unarmed villagers were reportedly mutilated and the village was burned to the ground.’

The case is still the subject of much enquiry.

The campaign in Aden city in the late 1960s has also given rise to allegations of unlawful killings by British soldiers. In his book The British Way in Counter-Insurgency, 1945-1967, David French cites examples from Malaya, Kenya, Cyprus as well as Aden. In Kenya, for example, security forces reported killing 8,400 Mau-Mau between October 1952 and April 1955, but recovered only 1193 weapons. Such discrepancies also occurred in Malaya at times, leading to speculation that some killings were of innocent people.

The troubles in Northern Ireland are well documented. The Army killed 301 people:

Republican terrorists:    121

Loyalist terrorists:    10

Civilians (Catholic):   138

Civilians (Protestant):   20

Other civilians:   2

Fratricide (Army/UDR/RUC): 10

Republican terrorists murdered 2148 people, of whom 162 were other republican terrorists. The security forces were responsible for only 40% of republican terrorist deaths. Army deaths attributable to terrorists were 700, of which all but six were the responsibility of republican terrorists.

But we still have to explain the 160 civilian deaths. Most were accidents, but by no means all. There is the case of Guardsmen Fisher and Wright who murdered the unarmed Peter McBride (aged 18) in 1992. And the case of Karen Reilly and Martin Peake, who were killed by a patrol from the Parachute Regiment. Private Lee Clegg was found guilty of the murder of Karen Reilly but acquitted at a retrial. He was, however, found guilty of the attempted murder of Martin Peake. Private Ian Thain was convicted of the murder of Thomas Reilly (aged 22, no relation), the road manager of the all-girl group ‘ Bananarama’. Thain was the first soldier in Northern Ireland to be convicted of murder whilst on duty. I will come back to these cases later. Many cases were those killed by plastic bullets; some were children. The worst and most significant case of killings is of course ‘Bloody Sunday’ when 14 unarmed people were killed in Londonderry in January 1972.

The ‘Pitchfork Murders’ represent a different but especially barbaric case. In Fermanagh in 1972, two men Michael Naan and Andrew Murray were murdered in cold blood by two soldiers from the Argyll and Sutherland Highlanders using the bowie knife of another soldier from the patrol. The two soldiers were a colour sergeant and a sergeant at the time of their arrest. The case came to light in 1979 as part of the ‘Yorkshire Ripper’ investigation.

A young subaltern, the platoon commander, was not present but withheld the story:

‘I mulled the whole thing over in my mind and decided that for the good of the army and the regiment it must never go any further’.

He was sentenced to one year in prison.

More recently, a court martial heard charges against soldiers of the Queen’s Lancashire Regiment including the commanding officer, Lieutenant Colonel Jorge Mendonça. It is known as the Baha Mousa case. The charges were of brutality and ill-treatment. Baha Mousa was arrested in September 2003 and held at a temporary detention facility (‘TDF’) in Basra. He died two days later. A post-mortem examination recorded 93 separate injuries to Mr Mousa’s body, including a broken nose and fractured ribs:

‘The Baha Mousa Public Inquiry

Final Submissions on Behalf of Colonel Mendonça:

1. There is no doubt that these detainees were treated appallingly throughout the time they were in the hands of 1 QLR within the TDF. They were assaulted and beaten by a number of 1 QLR soldiers and others. The death of Baha Mousa resulted from the treatment he received.’

A corporal was found guilty of ill-treatment. There are further allegations of execution, torture and reckless shooting against the British Army from its time in Basra.

An earlier court martial tried an officer and an NCO from 45 Commando who beat up a detainee in Helmand Province:

‘The trial heard that Mr Ekhlas was apprehended on suspicion of planting an IED. He was subjected to violence and transported to a nearby base where he was assaulted by Sergeant Leader and Captain Wheelhouse. The trial heard that Leader was seen hitting Mr Ekhlas with a boot. He needed four stitches to his lip and two of his teeth were loose.’

Leader claimed he used lawful violence against Mr Ekhlas in self-defence. But the court heard that Leader said of Mr Ekhlas: ‘I don’t know why they brought him back. They should have killed him’.

I said that the record is comparatively good, but the history of colonial soldiering would not bear too close an examination and nor, it appears, would the record in Iraq. Before we get carried away, most soldiers (and by ‘most’ I mean the overwhelming majority) behave decently and properly. And the ratio of killings in Northern Ireland bears that out – only one republican terrorist was killed for every six British soldiers killed by them. And it is as much for the sake of the good soldiers as any others that we should pay attention to the failures and indiscipline. Much of the point of counter-insurgency operations is to protect the population. Killing them is not only not protecting them: it hazards the mission. First, we alienate the people we are there to help. Secondly, such actions almost certainly make the campaign longer because information and intelligence flow less freely: we lose vital cooperation. Thirdly, it deepens and widens the conflict, killing and maiming more: including our own soldiers. Many more soldiers were subsequently killed and wounded because of the behaviour of those soldiers who deliberately shot and killed innocent civilians on Bloody Sunday. In the previous 12 months 45 soldiers were killed. In the 12 months after Bloody Sunday the figure almost trebled to 127.

So, the British Army, indeed any army, has to respond to atrocities and unlawful behaviour on operations. A comparatively minor case such as the recent court-martial requires some introspection on the part of the state and its army.

How to Respond

An analysis of this case would suggest that small breaches of discipline can lead to bigger ones. The exchanges between the marines are notable for the lack of formal address to the patrol commander. I do not doubt that they respected him in the sense of obeying commands and trusting him as an experienced soldier. But there is no use of rank: no ‘Colour’ or ‘Sarge’, nor does Marine A refer to his marines by rank: ‘Corporal!’ And there is plenty of material to show that this extends to junior officers, both in the army and the Royal Marines. So, does the use of nick names and first names between all ranks contribute a loosening of discipline? Yes, it does. Some modern officers have crossed a line and this is one aspect to examine and correct. In the case of Private Clegg, the patrol commander was an officer; he was originally one of those charged although subsequently cleared. The patrol had concocted a story to justify the shootings – the trial judge considered that Clegg’s version of events was ‘untruthful and incapable of belief’. In the ‘Pitchfork Murders’ case, the platoon commander failed to show the leadership required.

So, having officers is no guarantee of proper conduct but it is still a vital part of battlefield discipline.

Culture within the Army and Units

The failures are partly cultural in nature. Certain units seem to be more prone to poor behaviour than others. And as all units undergo very similar preparation for operations, that variation must be down to the culture within units. The old argument might have been that ‘robust’ behaviour in counter-insurgency by some individuals and units was an inevitable by-product of training for the ‘big’ war, where such conduct was excusable and even desirable. That argument no longer applies for western armed forces, including Britain’s.

Explaining the Geneva Convention for operations on the Central Region of NATO in the Cold War was a small and simple exercise. Dealing with arrestees, detentions, rules of engagement, weapon control orders, responding to changing political nuances and so on requires far more effort today. In large part this is because discretion (responsibility and accountability) is delegated to the lowest level. A single staff officer can no longer determine precise policy for the formation. All soldiers have to exercise judgement to reflect the exact circumstances that they encounter as individuals. Obviously, local commanders carry the greatest burden and regularly exercise that discretion on behalf of their soldiers, but that does not absolve the individual of responsibility as Marines B and C discovered.

These matters are the nuts and bolts of training and preparation for operations. Yet, that preparation will be of limited value if the army and unit culture is not addressed.

Loyalty

Loyalty is a tricky issue. Loyalty goes two ways. It isn’t much of a relationship where loyalty only moves in one direction. A commander has loyalties to his superior commander which may sometimes over-ride his loyalty to his own soldiers. It would be nice to state categorically that no commander can go wrong by always being loyal to his soldiers; but it is not always so. We expect that our superior commanders will be more aware of the general situation than those lower down. We also expect them to be well aware of the position of their subordinates: it is one of the duties of a commander to keep his higher headquarters in the picture because strained loyalties are often the result of misunderstandings.

Mistakes happen, and in our world they usually have serious consequences. The honest mistake from a well trained and well led unit is easier to deal with. We expect our superiors to defend us – to put themselves between us and higher authority. Better still, good direction:

…I will not tolerate breaches of discipline leading to unfair treatment of anybody … I most strongly disapprove of ‘beating up’ the inhabitants of this country just because they are the inhabitants … Any indiscipline of this kind would do great damage to the reputation of the Security forces and make our task in settling Mau Mau much more difficult. I therefore order that every officer in the Police and the Army should stamp at once on any conduct which he would be ashamed to see used against his own people …

General George Erskine’s Orders to the Army in Kenya – 23 June 1953.

General Erskine backed up his words with deeds: he sacked a brigadier and instituted charges for murder against a major. Firm guidance provides the best education.

And if it is tricky for senior officers, it is even trickier for junior officers and NCOs. They literally live with the soldiers that they might have to offer up for investigation. So, now the issue is becoming one of leadership. So much less simple than leading a rifle platoon in Normandy 1944. To be clear, Normandy was tougher, nastier and simpler – simpler but not easier. This is not the place to discuss officer selection, preparation, and training; but it is an integral part of the issue.

Armies help their officers and soldiers by establishing the right culture. We can see that the Argyll subaltern had been badly brought up by his regiment to believe that loyalty to the regiment was all. As ever, it ended in tears and an early admission by the officer would have saved some grief. Yet there was a small breach of discipline earlier on, which had knock-on effects. It was common practice for some in that unit to carry a bowie knife. Why was that permitted? No bowie knife, no murders. Could it be that stories from Aden 1967, when the Argylls entered Crater under Lieutenant Colonel Colin Mitchell, became part of the folk lore of the regiment? Myths are dangerous especially when there is some truth in them, however distorted.

Young officers and soldiers hear these stories – which lose nothing in the telling – and think that it how to behave. Myths simply have to be stamped on. It starts from the top but the sergeants’ mess plays an especially important role in establishing a healthy culture. There is no one way of doing it; it is a matter of recognising that it is an issue that needs addressing.

Legal Aspects

The public reaction to the Marines’ case is similar to the outcries that followed the Clegg and similar cases. It is that these offences are not best dealt with in a conventional court. True, the case at Bulford was heard by a general court-martial. Nevertheless, the procedures were largely those of the crown court, but with a board of officers rather than the usual jury. It is the nature of the charge and subsequent punishment that creates the difficulty. This case was handled impeccably: fair and open. The Ireland cases were held under Diplock rules – a judge sitting alone. Still, the public mood is that somehow soldiers should be given a special deal

Lord Lloyd of Berwick, a former law lord, said in a report from the Daily Telegraph (15 November 2013) that the mandatory life sentence for murder needs to be examined in cases where there are ‘extenuating circumstances’. He suggested that exceptions should include when soldiers and police officers kill someone in the ‘agony of the moment’ as well as for mercy killings. He said:

‘It is time for the law in this area to be reviewed so that the mandatory life sentence does not apply in these cases. It is a basic error of our law that at the moment when a policeman or a soldier shoots someone in the spur of a moment they are subject to a mandatory life sentence. There should be an element of judicial discretion.’

The consequences of that indiscipline are truly serious because it imperils the national mission and will inevitably lead to an increase in more casualties to our own troops. That cannot go unpunished. Such a serious breakdown in discipline disqualifies the marine or soldier from further service in the armed forces and requires imprisonment. Such indiscipline is intolerable.

We have to guard against false sentiment. Marine A did wrong. I am sure he was a competent and experienced soldier, but there are many of those in Afghanistan and they were not tempted to do what he did. We respect those soldiers and marines by punishing appropriately those who transgress. And we have to guard against some sort of misguided campaign to reinstate Marine A after he has served his sentence.

A new law which specifically deals with serious breaches of battlefield discipline that endanger the mission such as unlawful killing may be the proper way to deal with the sort of tragic events that unfolded at the Bulford Court Martial Centre.

What Should Have Happened

Marine A should have displayed some humanity to a dying man. He should have organised first aid properly, and it should have been administered with some tenderness. The fighter was dying. Our forces had done their bit – an Apache helicopter had blasted him with 139 rounds of 30mm cannon. Rather than guess whether or not he was dead, Marine A should have checked pulse and/or eyeball. If he was alive, then he just carries out the SOP: and asks for casevac by MERT. Higher HQs might have helped here, knowing that time was getting on and darkness would fall by about 1800hrs, and asked the direct question: ‘Is he alive? And if he is, we will order the MERT’.

As John Masters said, the fighter was entitled to dignity at his death.

So much trouble and anguish – so many tears – could have been saved. I heard the marines giving evidence. Believe me, you would not have wanted to be in their place as the shrewd Mr David Perry QC remorselessly cross-examined. By the end of a day in the box, I could hear the pain as the probing questions produced faltering answers that prompted more uncomfortable questions and shaming admissions. His patent fairness did nothing to ease the distress. Maybe fear of that ordeal would be enough to deter others from doing likewise; in which case one of the reasons for the trial will have served its purpose.