Afghanistan Analysts Network – English

Rights and Freedoms

The Takhar Case: London judge dismisses claim on targeted killings

Kate Clark 8 min

A judge in London has decided that a case related to targeted killings in Afghanistan will not go forward to judicial review – the procedure by which a court judges the legality of a particular action or policy by the British state as it affects an individual claimant. The case which the judge dismissed focussed on the alleged role of a civilian policing body, the British Serious Organised Crime Agency (SOCA), in helping draw up a list for targeted killings, the so called Joint Prioritised Effects List (JPEL). The case was brought by Habib Rahman who lost two brothers, two uncles and his father-in-law in an air strike on an election convoy in Takhar in 2010. Evidence for SOCA’s involvement in the JPEL had come in a United States Senate report, but the judge, accepting SOCA’s denial, ruled the evidence was not sufficient for the case to go forward to judicial review. Senior Analyst, Kate Clark, reports.

AAN conducted an in-depth investigation into how Habib Rahman’s relatives and other election workers came to be targeted in August 2010. The air strike on their convoy had been ordered by the Joint Special Operations Command (JSOC), the US military’s elite counterterrorism unit which operates under the US counter-terrorism mission Operation Enduring Freedom, rather than the ISAF mandate and carries out the bulk of targeted killing and capture operations in Afghanistan.

AAN uncovered gross intelligence failures: essentially, JSOC had mixed up SIM phone numbers, attributing one belonging to Habib’s father in law, Zabet Amanullah, who was the election agent of one of the province’s parliamentary candidates, Abdul Wahab Khorasani, to a provincial Taleban commander and then assuming everyone travelling in the campaign convoy with him were his fighters. JSOC failed to make the most basic background checks on the man they targeted. Zabet Amanullah was a famous figure provincially, well known in the presidential palace and had appeared as part of the election campaign in the local media. After the air strike, the Taleban commander whom the military claimed to have killed was located and interviewed, but despite overwhelming evidence the military command has never accepted that it got the wrong man and killed ten civilians that day. Indeed, ISAF public affairs later misled journalists when they asked about the killings. AAN’s report included a legal analysis of how the air strike breached international humanitarian law with the body of law governing armed conflict.

It is rare for a researcher to be able to find and fit together all the pieces of why a targeted killing has gone wrong: AAN managed to gather dozens of eye witness and survivor testimony, documentary evidence of the lives of the two men (the election agent and the commander) whose identities the military had conflated and, most significantly, were given frank interviews with the special forces command about their intelligence sourcing. Worryingly, the intelligence failures looked to be possibly systematic and the breaches of international humanitarian law grave. In other cases, as AAN has reported (for example about an Afghan journalist killed in Uruzgan here), the military’s honesty and readiness to admit mistakes has helped survivors and the relatives of those killed (see also a positive assessment of General John Allen’s ISAF command in respect to civilian casualties here). In the Takhar case, they covered up.

Why the claim

When Rahman’s lawyers presented his claim in the high court in August 2013, they accepted they did not know whether information provided by Britain had contributed to this particular attack, but hoped the legal challenge would force a more open examination of how Britain contributes to drawing up and executing the Joint Prioritised Effects List, the JPEL (which is used as a basis for both detention and targeted killing) and whether guidance exists to ensure actions are within the law. However, in November 2013, the judge dismissed the case. While the initial claim in August of last year was widely reported in British and other media (see here, here, here and here), the dismissal was not reported. This is a case AAN feels strongly about; we hoped that by its coming before a court, there would be some accounting for what happened. As it is also one we will continue to cover, we wanted to bring you the details of why the judge turned it down.

The judge ruled that there was not enough evidence for the case to go forward for judicial review. The original claim, made in August 2013, had asked for a review of both the alleged involvement of the ministry of defence and the specialised policing agency, SOCA, in the targeted killing list. The ministry of defence, not accepting or denying it was involved in the JPEL, said it worked “strictly within the bounds of international law”. SOCA, however, denied any involvement in the compilation, reviewing or executing of the JPEL and this blanket denial gave an entry for Rahman’s lawyers to pursue his claim against SOCA further because they did have evidence of SOCA’s involvement – in the form of a US Senate report and the sworn testimony of its author.

SOCA is present in Afghanistan largely because of the drugs industry: most of the heroin sold in Britain is Afghan. JSOC has put certain drug smugglers on the list for targeted killing, as alleged financiers of the insurgency. This is highly controversial. Under international humanitarian law, civilians have to be “directly participating in hostilities” to lose their protected status. Guidance on what this phrase means published by the International Committee of the Red Cross, for example, argues that financing a war, whether on the side of the state or an armed group, does not amount to direct participation in hostilities:

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 [international humanitarian law]. 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.

Drug smugglers, even those supporting an insurgency, it is argued, remain protected persons and cannot be targeted. Instead, they should be dealt with as a civilian policing matter, ie with detention and trial and with evidence of their wrong-doing presented before a court of law. The matter would be governed by international human rights law which only allows the use of lethal force when it is strictly and directly necessary to save human life or where there is an imminent threat to life. Less extreme means, such as capture or non-lethal incapacitation, are not sufficient to address the threat. (See a discussion on targeted killings and international human rights law here).

As for a civilian policing body like SOCA giving information so that a person could be identified for targeted killing, this would be a grave breach of British domestic law and international humanitarian law; only the military have ‘combatant privilege’, ie are able to kill (within various restrictions) without it being classed as murder. As British lawyer Rosa Curling from Leigh Day, which represented Habib Rahman, said in July 2013 (see AAN reporting here and Leigh Day’s press release here):

As a civilian policing organisation SOCA has no legitimate or lawful role to play in the compilation or administration of this Kill List – it has no authority to be involved in military operations and the killing of individuals. The courts must urgently review whether the SOCA’s and indeed the UK’s role in the compilation, review and execution of this list if unlawful. Incidents like that affecting our client must be properly investigated.

The targeted killing of drug smugglers

There are various sources for the UK’s involvement generally in both compiling and executing the JPEL, including Wikileaks, as reported in The Guardian, a PBS documentary and Der Spiegel. As to the JPEL being used to kill alleged drug smugglers – and SOCA’s alleged specific involvement in this – Rahman’s lawyers presented as evidence an official US Senate report, Afghanistan’s Narco War: Breaking the Link Between Drug Traffickers and Insurgents. The principal investigator and author of the report, Douglas Frantz, who was then working for the chair of the Senate Foreign Relations Committee, Senator John Kerry (now US Secretary of State), said that during a formal briefing an officer explained, “We have a list of 367 ‘kill or capture’ targets, including 50 nexus targets who link drugs and insurgency.” In other words, drug smugglers believed to be funding the insurgency have been put on the list of ‘insurgent leaders and facilitators’ for targeted killing or capture.

The Senate report describes how SOCA was one of a number of bodies – along with the US and UK military, the US Department of Drug Enforcement Agency and police and intelligence agencies from other countries – which were involved in the setting up of a group called the Joint Inter-Agency Afghanistan Task Force (JIATF). In a witness statement to the court, Frantz said:

… military and civilian officials had provided information about the effort to combine law enforcement and military authorities in a program to identify drug traffickers who were involved with financing the insurgency. People who met the specific criteria would be placed on the Joint Prioritized Effect List (JPEL), which would subject them to arrest and possible killing. My understanding was and remains that the JIATF was linked to the effort to identify people who qualified for inclusion on the JPEL. The briefing on the JIATF was conducted at the US military compound and it was attended by senior military and civilian law enforcement officers from the United States, Britain and Australia. The meeting was unclassified and not recorded, but the clear understanding was the information would be used in a subsequent public report.

In the Senate report, Frantz quotes an investigator with SOCA who was involved in the JIATF:

… [he] described the approach as a critical opportunity to blend military and law enforcement expertise. ‘In the past, the military would have hit and evidence would not have been collected,’ he explained. ‘Now, with law enforcement present, we are seizing the ledgers and other information to develop an intelligence profile of the networks and the drug kingpins.’ An American military officer with the project was blunter, telling the committee staff, ‘Our long-term approach is to identify the regional drug figures and corrupt government officials and persuade them to choose legitimacy or remove them from the battlefield.’

SOCA’s defence

SOCA has been forced by this action to reveal information about some of what it does do in Afghanistan and how it shares information with the military. However, it has portrayed this involvement as within the bounds of the law. It contended that the Senate committee report had misunderstood its role:

SOCA has no involvement in adding names to the list, or otherwise evaluating or amending it. SOCA has no role in determining who is or is not an enemy combatant. It does not undertake acts which amount to direct participation in hostilities.

During the course of the case, SOCA revealed that it does interact with the military in Afghanistan and does pass on intelligence. It said that, as legally allowed under the UK Serious Organised Crime and Police Act from 2005, it might disclose information to ISAF for the purposes of “the prevention, detection, investigation or prosecution of criminal offences whether in the United Kingdom or elsewhere”. Such information, it said, would be given to ISAF to help it assist local law enforcement to make an arrest or prevent criminal offenses. SOCA said that since the start of Rahman’s case it had drawn up written policy on intelligence sharing, but that this merely formalised pre-existing practice and the process of writing the policy had started before the case. Its stated policy fell within normal civilian policing practice:

SOCA places restrictions on the dissemination of intelligence to the ISAF. Intelligence which is disseminated by SOCA is required to include handling conditions which require the express approval of the originator if it is proposed to use the material for military targeting purposes. If the mission is to arrest, with a view to criminal investigation and potential prosecution, SOCA would ordinarily be prepared to provide and/or allow the use of its intelligence. On the other hand, if the primary option for a mission is to use lethal force, SOCA would not provide intelligence or allow the use of its intelligence in support of such a mission, save potentially where the individual who is the target of the operation poses a significant and immediate threat to he lives of others (and so such disclosure would be for the purpose of preventing a criminal offence).

The case against SOCA is dismissed

Judges in the UK tend to believe assertions made by the state unless there is evidence to suggest those assertions may be problematic. This is what has happened in Rahman’s case: “Properly examined,” said the judge in November 2013, “there is no sound evidential basis for the assertion [that SOCA participates in the drawing up of the targeted killing list] in the face of the defendant’s denial.” This case then, will not go to judicial review.

For Habib Rahman and the other relatives of those killed in August 2010 and for those who survived the attack with injuries, this will be disappointing news. Trying to find a legal crack to get redress has been difficult in the face of adamant denials by the powerful US military that it did anything wrong. British lawyers managed to find a possible point of weakness to explore, in the UK’s involvement in the JPEL and the alleged role of SOCA. If the judge had accepted that his case could go forward to judicial review, it could have opened up the targeted killing tactic to greater public scrutiny. That will not happen now. However, the struggle to get justice in Rahman’s case continues. He is still pursuing a private claim(1) against the UK ministry of defence and SOCA, and the revelations about SOCA’s role in Afghanistan which have emerged through the public law claim may help his private claim.

 

(1) See our report about a compensation claim by a group of Afghan relatives of victims of a German-ordered airstrike in Kunduz province in 2009 that was rejected by a German court in late 2013, here.

Tags:

JPEL kill list policing SOCA Habib Rahman intelligence JSOC targeted killing Zabet Amanullah

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