Afghanistan Analysts Network – English

International Engagement

The Takhar attack and Targeted Killings: the Legal Challenge

Kate Clark 17 min

An Afghan bank worker from rural Takhar, Habib Rahman, is taking the British government to court over Britain’s participation in drawing up and executing the US military’s ‘kill list’ which singles out alleged insurgents for targeted killing. Rahman lost his father-in-law, Zabet Amanullah, and several other close relatives in September 2010 when an air strike targeted their cars during campaigning for the parliamentary elections. The US military claimed it had been a ‘precision strike’ on the Taleban deputy shadow governor for Takhar, Mullah Amin, and his Taleban fighters. A study of the case by AAN (1) revealed how the targeted killing had been based on faulty intelligence – a mix up of the mobile phone numbers of Zabet Amanullah and Mullah Amin and a conflation of the two men’s identities. Yet, the military has never admitted to killing civilians that day. Now, says the author of the AAN report, Kate Clark, there is hope that through the legal challenge in London, Rahman will finally get some answers as to how his relatives were killed and light will be shed on the legality of the US military’s ‘kill list’ and of Britain’s participation in it.

‘Poor Afghans will never be able to get to see the right people to get justice’ said one of the men who suffered serious injuries during the air strike. That may be about to change with the legal challenge by Habib Rahman. His solicitors have delivered legal letters to the British Ministry of Defence and a British civilian policing body, the Serious Organised Crime Agency, demanding details of their participation in the ‘compilation, review and/or execution of’ the US military’s secret ‘kill list’. This is the Joint Prioritised Effects List – or JPEL – drawn up by the Joint Special Operations Command or JSOC at Bagram. It is a list of those deemed ‘insurgent leaders’ who are to be targeted for killing or capture.

According to a US Senate committee report, the UK armed forces and SOCA are involved in putting together this list. According to documents published by Wikileaks, British forces have been involved in carrying out killings. Rahman’s solicitors have challenged the legality of the List, arguing their case on the basis of International Humanitarian Law (IHL), the body of law, including the Geneva Conventions, which regulate warfare.

The text of the solicitors’ letter can be read at the end of this blog. For media coverage of the legal challenge, see here and here)

Rahman’s father-in-law, Zabet Amanullah, whom the US military mistakenly targeted and killed was a man I had met in 2008. I interviewed him after he had fled Pakistan where he had been detained and badly tortured by the Pakistani intelligence agency, the ISI, because he was a former Taleban commander who was not fighting in the insurgency. Many other people also knew Zabet Amanullah – the chief of police in Takhar and the governor, senior aides to President Karzai and other Kabul-based politicians. He was a well-known man who had lived openly in Kabul after fleeing Pakistan and, as his nephew’s agent, had appeared in the media during their very public election campaign. How then did the US Special Operations Forces, which ordered the air attack on the convoy and claimed they had killed the Taleban deputy provincial governor, Mullah Amin, get their targeting so wrong?

After interviewing dozens of witnesses and survivors of the attack and the most senior officers in the US Special Operations Forces which carried out the attack, it became clear that intelligence analysts had mixed Zabet Amanullah’s mobile telephone number with that of Mullah Amin, the Taleban deputy governor of Takhar. Even when Zabet Amanullah had answered his phone with his own name, those listening in had assumed it was Mullah Amin using an alias. They had not bothered to check whether Zabet Amanullah existed. After the attack, the real Mullah Amin was located and interviewed by the Harvard academic, Michael Semple (read his account here).

Under International Humanitarian Law (IHL), those fighting in wars cannot target civilians and must take precautions to protect them. In the words of the British MoD’s own manual, which is quoted in the legal challenge, ‘…military commanders and the civilian authorities should do everything that they feasibly can do to protect civilians and civilian objects in their area of control from the effects of war.’

Those ordering the Takhar attack appear to have violated this precautionary principle of IHL. Not only did poor intelligence lead to the targeting of the wrong man, but their assumption that all those travelling with him were also insurgents meant nine more civilians ended up dead, with many more injured. In the words of the legal letter to the MoD and SOCA: ‘It…appears that proximity to a listed target alone is considered an indicator of direct participation in hostilities. Such a policy would be unlawful under… IHL principles…’  Rahman’s lawyers also point out that the lack of ‘formal and effective policy governing procedure in cases of complaints by individuals like our client’ is also of relevant here because ‘full analysis of past strikes and the investigation of any actual or alleged mistakes that occurred is a critical aspect of taking due precautions in future strikes.’ 

The legal challenge to the British government also raises the grave allegation that some of those killed in the Takhar attack and in other targeted killings may have been killed while they were hors de combat.(2)

The role of SOCA in contributing to the JPEL is particularly troubling as it is not part of Britain’s armed forces and does not enjoy combatant immunity under IHL.(3)

How difficult it has been to get answers from the military in the two years since Rahman’s relatives were killed. In the immediate aftermath, everyone on the Afghan side, from President Karzai downwards said the attack had targeted civilians. The military investigated and insisted the targeting had been correct. Rahman tried repeatedly to make an official complaint to ISAF, but said he was consistently denied access to the bases, including the headquarters in Kabul.

In the wake of the AAN report which produced the first detailed evidence of the separate lives of Zabet Amanullah and Mullah Amin and biographical information of all the men in the convoy and raised many of the legal questions which have now been put to the British government, the bulldozing power of the US military and ISAF (whose spokesmen also speak on behalf of the largely special forces of the separate Operation Enduring Freedom) became even more evident. Spokesmen in their issuing of  blanket denials, failed to address the substance of AAN’s allegations and misled journalists (read here) who tried to ask about them.(4) It is hoped that a High Court judge, if the case goes to court, will not be so easily mislead.

If we are lucky, we will not only get some proper answers about the Takhar case, but some insights and legal thinking about one of the most secretive aspects of the Afghan war, the JPEL kill list, and the role Britain plays in drawing it up and executing it. This is a potentially troublesome case for the British government. After a similar challenge to the British military’s handing over of detainees to the Afghan intelligence agency, the NDS, despite the risk of torture, the British army was forced to stop transfers to some detention facilities and institute a careful monitoring of anyone handed over elsewhere (for reporting, see here). Along with court cases in Canada and elsewhere, and then reporting by UNAMA and the Afghanistan Independent Human Rights Commission (AIHRC) this was crucial for changing ISAF’s previous laissez faire attitude to torture by its Afghan partners. For now, on this case, we await the British government’s response. Habib Rahman’s solicitors, Leigh Day & Co, has asked the MoD and SOCA to respond within 21 days.

This is an important and timely legal challenge. After 2014, when the bulk of conventional forces have withdrawn from Afghanistan, every indication from Washington (for reporting, see here) is that it intends to keep US Special Operations Forces and the CIA in the country and to continue carrying out targeted killings, based on the JPEL. Britain, joined at the hip with the US when it comes to the war in Afghanistan, can be expected to go along with whatever Washington wants. After 2014, it will be even less easy to hold those ordering the targeted killings of Afghans to account – which is why a court case now looking into their legality is needed so very much.

The letter to the MoD (the one to SOCA had the same text):        

 

The Secretary of State for Defence

Ministry of Defence

Main Building

Whitehall

London SW1A 2HB

 

            Your Ref:

            Our Ref: RS/ Rahman

            Date: 7 August 2012

            

By post and fax

 

Dear Sirs 

Re: The Joint Prioritised Effects List – Pre-action letter 

Summary

This letter is sent on behalf of Mr Habib Rahman [redacted], who lost relatives in a missile attack by international military forces in Afghanistan. The strike was apparently aimed at a person whose name had been added to a list of individuals known variously as the Joint Prioritised Effects List or Joint Integrated Prioritized Target List (the List). On the basis of publicly available information, we understand that the effect of adding a person’s name to the List is to designate that person (and possibly others around him) as an enemy combatant, who may be targeted as such; and that both UK Armed Forces (for whom the Secretary of State for Defence is responsible) and civilians working for the Serious Organised Crime Agency (SOCA) are involved in decisions about who should be placed on the List. On the basis of the information now available to us, it appears to us that the participation of UK officials in these decisions may give rise to criminal offences and thus be unlawful. We seek accordingly certain assurances, failing which we intend to issue proceedings for judicial review seeking declaratory relief as to the legality of the UK’s participation in these decisions. 

This letter has been prepared under the Pre-Action Protocol for Judicial Review (the Protocol) and accordingly adopts the form set out in the Annex to the Protocol. 

1.         To:

a.         The Secretary of State for Defence

b.         The Serious Organised Crime Agency

 

2.         The claimant: Mr Habib Rahman of [address redacted].

 

3.         Reference details: As per the above letter head.

 

4.         Details of the matter being challenged: The participation of UK Armed Forces, SOCA and any other agencies or emanations of the UK Government in the establishment and maintenance of the List.

 

5.         The issue:

 

5.1       Our client Mr Rahman is an Afghan national currently working for a bank in Gardez, Paktia province, Afghanistan. Our client’s cousin, Mr Abdul Wahab Khorasani, is a former Parliamentary candidate for Takhar province in Afghanistan. In the run-up to the Afghan Parliamentary elections in 2010, several of our client’s relatives assisted Mr Khorasani with his campaign. 

 

5.2       On 2 September 2010, two of our client’s brothers, two of his uncles and his father-in-law were killed in a missile attack by international military forces in Afghanistan. The attack occurred while they were campaigning with Mr Khorasani in Rustaq district of Takhar province. In total, it killed 10 civilians and injured several more, most of whom were election campaign workers and our client’s relatives. The strike was condemned by the Afghan President Hamid Karzai. 

 

5.3       According to an International Security Assistance Force (ISAF) press release of 2 September 2010, the attack was “a precision air strike”. Apparently the intention behind it was to target a Taleban commander and alleged member of the Islamic Movement of Uzbekistan known as Muhammad Amin. The statement claimed that “initial reflections indicate eight to 12 insurgents were killed or injured in the strike, including a Taleban commander.” 

 

5.4       However, a detailed investigation carried out by Ms Kate Clark of the Afghanistan Analysts Network  provides powerful evidence that this was an instance of mistaken targeting. Muhammad Amin, to whom our client and his relatives have no connection, was not present at the location of the strike. Indeed, in March 2011, months after the attack, Mr Amin was seen alive and interviewed in Pakistan by Michael Semple, a Fellow at the Kennedy School of Government at Harvard University and a well-known expert on Afghanistan. 

 

5.5       It is understood that Muhammad Amin was marked out for attack because he was included as a target in the List. 

 

5.6       An official public report to the Committee on Foreign Relations of the United States Senate (the US Senate Report) describes the List as a ‘kill list,’ stating in relation to those designated as targets on the List: ‘The military places no restrictions on the use of force with these selected targets, which means they can be killed or captured on the battlefield; it does not, however, authorize targeted assassinations away from the battlefield. It would appear, however, that ‘the battlefield’ here lacks any clear demarcation. 

 

5.7       In effect, the List thus appears to identify certain individuals who are, simply by virtue of their inclusion on it, regarded as enemy combatants. 

 

5.8       The US Senate Report specifically acknowledges the involvement of (i) the UK military and (ii) SOCA in the compilation of the List and in decisions about the names that should be added to or removed from it. Further support regarding  UK involvement in the execution of the List in particular incidents is provided by various documents released by Wikileaks, several of which were made available on the internet site of The Guardian (see, for instance, operations carried out by Task Force 42 and/or other UK forces on or around 28 October 2008 and 6 November 2008). 

 

5.9       We have several concerns regarding the legality of the UK’s participation in the compilation, review and/or execution of the List. In particular: 

5.9.1    Under Common Article 3 of the Geneva Conventions, ‘persons taking no active part in the hostilities’ are protected from ‘violence to life and person, in particular murder of all kinds’. The customary international humanitarian law (IHL) principle of distinction applies. The Manual of the Law of Armed Conflict published by the UK Ministry of Defence (the MoD Manual) states as follows at para 15.6.5: 

In carrying out attacks, there should be a distinction between those who take an active part in hostilities and those who do not. The use of the words ‘are taking’ emphasizes that a potential or future fighter may not be attacked as such. 

5.9.2    The International Committee of the Red Cross (ICRC), in its authoritative study Customary International Humanitarian Law (2005, Cambridge University Press), identifies the following relevant principles: 

Rule 1. The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.

                        …

Rule 6. Civilians are protected against attacks unless and for such time as they take direct part in hostilities. 

The ICRC’s Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law emphasizes that civilians assume a ‘continuous combat function’ only if they ‘continuously and directly participate in hostilities’ on behalf of a non-State party to an armed conflict. It states: 

Individuals who continuously accompany or support an organized armed group, but whose function does not involve direct participation in hostilities, are not members of that group within the meaning of IHL. Instead, they remain civilians assuming support functions, similar to private contractors and civilian employees accompanying State armed forces. Thus, recruiters, trainers, financiers and propagandists may continuously contribute to the general war effort of a non-State party, but they are not members of an organized armed group belonging to that party unless their function additionally includes activities amounting to direct participation in hostilities. The same applies to individuals whose function is limited to the purchasing, smuggling, manufacturing and maintaining of weapons and other equipment outside specific military operations or to the collection of intelligence other than of a tactical nature. Although such persons may accompany organized armed groups and provide substantial support to a party to the conflict, they do not assume continuous combat function and, for the purposes of the principle of distinction, cannot be regarded as members of an organized armed group. As civilians, they benefit from protection against direct attack unless and for such time as they directly participate in hostilities, even though their activities or location may increase their exposure to incidental death or injury. 

 

5.9.3    The criteria employed to determine which individuals are included in the List and consequently targeted in direct attacks do not appear to reflect these principles of customary IHL. 

5.9.4    For instance, the US Senate report notes that “[t]he precise rules are classified but two US generals in Afghanistan said that the ROE [Rules of Engagement] and the internationally recognized Law of War have been interpreted to allow them to put drug traffickers with proven links to the insurgency on a kill list. … Currently, there are roughly 50 major traffickers who contribute funds to the insurgency on the target list.’ In light of the principles set out above, drug traffickers who merely support the insurgency financially could not legitimately be included in the List but should be dealt with as criminals. 

5.9.5    Similarly, analysis of ISAF press statements suggests that ‘facilitators’ may be deemed to have a continuous combat function in the context of targeted strikes. Yet, ISAF’s own definition of ‘facilitators’ in a press release dated 14 October 2011 states: ‘Facilitators assist in the conduct of future operations by assisting insurgent movement, equipping, people, munitions, cash, etc. Individual roles can change and leaders, likewise, can absolutely be classified as facilitators.’ Again, for the purposes of IHL, under this definition ‘facilitators’ would not assume a continuous combat function and would therefore be protected from direct attack (though of course not from arrest and criminal liability). 

5.9.6    Mere proximity to anyone on the List (or anyone believed to be identical with a person on the List) exposes unconnected individuals such as our client to a real risk of being seriously injured or killed. However, this risk does not appear to be limited to the danger of being harmed in the course of a lawful, proportionate military operation (i.e. the risk of becoming ‘collateral damage’). Rather, the general practice of international forces in Afghanistan and the experience of our client suggest that proximity to a listed target is, on its own, sufficient for an individual to be considered a legitimate target of attack. The press statement relating to the 2 September 2010 incident, for instance, noted that multiple ‘insurgents’ had been killed, even though clearly none of those present at the scene of the attack were taking direct part in hostilities at the time. It thus appears that proximity to a listed target alone is considered an indicator of direct participation in hostilities. Such a policy would be unlawful under the of IHL principles set out above. 

5.9.7    In effect therefore, the List appears to identify certain individuals who are, simply by virtue of their inclusion on the List, to be regarded as enemy combatants.

 

5.10     In any event, separately from our concerns about the compilation of the List, it appears that the execution of attacks against listed targets involves significant disregard of the applicable rules of IHL: 

5.10.1  As the MoD Manual states at para. 15.10.1, ‘fighters who have surrendered or are hors de combat (placed out of action) because of sickness, wounds, detention or for any other reason’ also benefit from the protection against direct attack under Common Article 3 of the Geneva Conventions (see para 5.9.1). 

5.10.2  Nevertheless, in incidents like the one in which our client’s relatives were killed, there appears to be a practice of targeting individuals on the List even if they are hors de combat. The US Senate Report emphasises that there are ‘no restrictions on the use of force’ against listed targets. 

5.10.3  In the present case, after the initial missile strike, helicopters arrived at the scene of the attack and fired on some of the individuals present. There are diverging accounts as to the exact circumstances of this further attack. Even the account given by the military unit carrying out the attack, however, accepts that ‘[s]omething was seen fluttering in the car, so the pilots were authorised to re-engage against the occupants who were in the vehicle.’ 

5.10.4  On any reasonable basis, occupants of a car that was just hit by a missile are extremely likely to be wounded and effectively hors de combat. The fact that a further attack on them was formally authorised merely on the basis of ‘something … fluttering’ thus suggests a policy of targeting individuals on the List, regardless of whether they might in fact be hors de combat.

 

5.11     Further, there is no system in place to conduct any effective investigation and review of incidents such as the one that killed our client’s relatives. 

5.11.1  Commenting on drone strikes in Afghanistan, a Ministry of Defence spokesperson stated: ‘As you would expect, following any engagement an assessment will be made of the effectiveness of individual mission strikes. However, because of the limited information available from imagery and immense difficulty and risks that would be involved in collecting robust data on the ground, this information is considered speculative and likely inaccurate.’ Instead, the Ministry of Defence acknowledged, ‘it relies on Afghans making official complaints at military bases if their friends or relatives have been wrongly killed.’ 

5.11.2  Such a system is flawed in several respects, in particular in that: (i) there exists no formal standardized process for making or processing complaints, (ii) Afghans face significant disincentives to report incidents, and (iii) even where there is an attempt to raise a complaint, this is frequently frustrated by practical difficulties such as not being allowed access to military bases. Our client, for instance, attempted to approach ISAF on many occasions so as to make an official complaint. Yet, he was consistently denied access to the bases and sent away, including at ISAF Headquarters in Kabul. 

5.11.3  The precautionary principle of IHL, as set out in paras. 15.22 of the MoD Manual, requires that ‘[i]n planning or carrying out attacks, precautions must be taken to limit attacks to military objectives and to minimize incidental loss or damage.’ Further, para. 15.24 of the Manual states, ‘military commanders and the civilian authorities should do everything that they feasibly can do to protect civilians and civilian objects in their area of control from the effects of war.’ 

5.11.4  Clearly, full analysis of past strikes and the investigation of any actual or alleged mistakes that occurred is a critical aspect of taking due precautions in future strikes. Nevertheless, and despite the stated reliance by the Ministry of Defence on complaints by the population, currently there seems to be no formal and effective policy governing procedure in cases of complaints by individuals like our client.

 

5.12     On the basis of the above, the current policy regarding the compilation, administration and execution of the List does not appear to accord with the basic principles of customary IHL applicable in non-international armed conflict.

 

5.13     In particular, the participation of members of the UK Armed Forces and of civilian employees of SOCA and any other UK Government agencies in the compilation, administration and execution of the List is unlawful in that: 

5.13.1  The act of targeting an individual who is not a combatant for the purposes of international law, if committed by a UK national in Afghanistan, would amount to murder and/or to a violation of IHL contrary to s 1 of the Geneva Conventions Act 1957 and s 51 of the International Criminal Court Act 2001; 

5.13.2  If the inclusion of an individual’s name on the List authorises such targeting, it amounts to encouraging or assisting murder contrary to ss. 44 et seq. of the Serious Crime Act 2007 and/or to conduct contrary to s. 1 of the Geneva Conventions Act 1957 and s. 52 of the International Criminal Court Act 2001; 

5.13.3  Neither UK Armed Forces nor SOCA have any power to engage in a practice which amounts to or involves the commission by their members or employees of such offences.

 

5.14     The participation of SOCA in the compilation and administration of the List, and thereby in selecting and reviewing individuals to be killed, is unlawful for the additional reasons  that: 

5.14.1  It exceeds SOCA’s statutory mandate and powers as defined in the Serious Organised Crime and Police Act 2005, in that this does not sanction acts amounting to direct participation in armed conflict. 

5.14.2  SOCA officers are not members of the armed forces and therefore cannot benefit from combatant immunity under international law. As such, their involvement potentially exposes them to domestic and/or international criminal liability regardless of whether the principles of IHL are complied with.

 

5.15     Further, the failure to have in place any or any sufficient policy or procedure for the making and investigation of complaints regarding past strikes is unlawful in that it severely and unreasonably limits the ability of the relevant decision makers to equip themselves with the information necessary to take a lawful decision when authorizing or otherwise participating in any future strikes.

 

6.         Details of the action expected 

In the light of the above, please confirm:

 

6.1       Whether the UK participates in the compilation, review and/or execution of the List and what form such participation takes.

 

6.2       If so, that the compilation, review and execution of the

List fully complies with the principles of IHL, in particular: 

6.2.1    The prohibition against targeting individuals protected from direct attack, including 

(i)        those who take no active part in hostilities, even if they are ‘facilitators’ within ISAF’s definition and/or drug traffickers, and 

(ii)       individuals who are not themselves combatants but merely in the proximity of individuals included on the List. 

6.2.2    Legal restrictions on the use of force, such as where individuals have surrendered or are hors de combat (regardless of whether they are included in the List).

 

6.3       Pursuant to what statutory or other power SOCA participates in the compilation, review and/or execution of the List.

 

6.4       Whether there exists any policy, guidance or other document to ensure that UK participation complies with the applicable legal principles and does not expose UK officials or argents to criminal liability under domestic and/or international law.

 

6.5       Whether there exists any policy, guidance and/or procedure, setting out how individuals can raise complaints regarding mistaken strikes and the killing and injury of civilians. 

6.5.1    If so, what steps have been taken to put into effect such a policy, guidance and / or procedure in Afghanistan, including but not limited to: 

6.5.1.1 Disseminating its existence to members of the local population likely to be affected by strikes, 

6.5.1.2 Putting in place appropriate structures, tactics, techniques and procedures as well as training modules to ensure the effective and uniform operation of any such complaints mechanism, including its accessibility to the local population.

 

6.6       If there any such policy or guidance exists, please disclose it.

 

7.         Details of the legal advisers dealing with this claim

As per above letterhead.

 

8.         Details of any interested parties

None.

 

9.         Details of any information sought

See §6 above.

 

10.       Details of any documents considered relevant and necessary

See §6.6 above.

 

11.       Address for reply and service of court documents

As per above letterhead.

 

12.       Proposed reply date

We look forward to hearing from you shortly and certainly no later than 21 days.

  

Yours faithfully 

Leigh Day & Co 

Cc:       Public Law Team, Treasury Solicitors

 

(1) Find here the full text of the report.

(2) See the quotation from the MoD manual above: ‘fighters who have surrendered or are hors de combat (placed out of action) because of sickness, wounds, detention or for any other reason’ also benefit from the protection against direct attack under Common Article 3 of the Geneva Conventions. 

(3) Those in the armed forces have the legal privilege of being able to kill during warfare, provided they act according to IHL.

(4) For example, the ISAF spokesman told the BBC Pashto service, that, ‘The man who was targeted in the operation, one of his family members has confirmed that he was the Taleban deputy governor’. This author had gone through the intelligence on which the killings had been based with the SOF and could therefore date the interview with the family member (actually an interrogation). It had taken place in February 2010, six months before the killing. The family member had confirmed that Mullah Amin was the deputy governor, not that the dead man was Mullah Amin. Note the use of the present perfect tense (‘has confirmed’) which refers to the recent past.

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Taleban US Takhar

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