The allegation that a British civilian policing body, the Serious Organised Crime Agency (SOCA), helped draw up lists of Afghans for targeted killings in ISAF’s ‘kill or capture’ strategy in Afghanistan has re-surfaced. Two years ago, SOCA denied to a London court that it had supplied such intelligence for targeted killings in a case brought by an Afghan man, Habib Rahman. He had lost two brothers, two uncles and his father-in-law – all civilians – in a targeted killing in 2010. AAN’s Kate Clark has been examining the new evidence against SOCA and looking at what it might mean for the family members of those killed in the 2010 attack.One of those killed while out electioneering in Takhar province in 2010: Atiqullah Rahman, a school student, was the brother of Habib Rahman who made a request for a judicial review to look into the UK’s alleged role in targeted killings in Afghanistan (permission given to AAN by the family to reproduce the image).
In November 2013, a judge in London decided Habib Rahman’s case would not go forward to judicial review – the procedure when a court judges the legality of a particular action or policy by the British state as it affects an individual claimant. The case had focussed on whether the Serious Organised Crime Agency (SOCA) was supporting targeted killing. SOCA had been named in a United States Senate report as one of the agencies contributing information to the list of individuals whom the military deem can be subject to targeted killing. This is the ‘Joint Prioritised Effects List’, commonly known as the JPEL. (1)
SOCA, it is alleged, had been drawn into supplying intelligence after drug traffickers began to be added to the JPEL in late 2008: the rationale for killing drug traffickers was that they were funding the insurgency. Financiers of wars are usually considered civilians so this was, in itself, a controversial and possibly illegal move (more of which later). Moreover, only the military enjoys ‘combatant privilege’; members of the armed forces can kill during wartime without it being considered murder. Civilian police cannot. The allegation that SOCA was involved in helping to compile the JPEL was, therefore, extremely serious, as one of Habib Rahman’s British lawyers, Rosa Curling explained, 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 SOCA’s and indeed the UK’s role in the compilation, review and execution of this list if unlawful.
Rahman’s lawyers accepted that they did not know if information from the UK had contributed to the attack on Rahman’s father-in-law and the other election campaigners in 2010. However, they hoped the challenge would force a more open examination of how Britain was allegedly contributing to drawing up and executing the JPEL, and whether guidance existed to ensure actions were within the law.
When the case came to court in November 2013, SOCA admitted it did pass on information to the military, but said it did so solely for legal, civilian, and policing purposes. (2) It said it was not involved in compiling or managing the JPEL kill or capture list and took no part in hostilities. The judge accepted the denial and ruled there was insufficient evidence for the case to go forward to judicial review.
Fresh evidence against British police
In a new report on the UK’s alleged involvement in targeted killing, the anti-death penalty, campaigning organisation, Reprieve, has gone back through various, mainly leaked documents and published what it says is new evidence of British involvement in targeted killings. One of the documents leaked by Edward Snowdon, it says, points to the British military both nominating targets for the JPEL and executing the targeted killings. (3) Reprieve also presents new evidence of the involvement of SOCA (which is now called the National Crime Agency or NCA) in drawing up the list of targets. It cites another leaked document, an article from an in-house newsletter from the National Security Agency (NSA), the US agency which compiles and analyses signals intelligence or SIGINT. The article was classified as top secret and published for an internal readership by the National Security Agency’s Southwest Asia Narcotics Division, known as ‘FGS2F’. It is titled: “SIGINT Helps Hobble the Taleban by Cutting off Their Livelihood”.
The article described how, from May 2008, FGS2F agents had been providing “real time support to counter-narcotics operations, targeting processing laboratories, traffickers’ compounds and the traffickers themselves as they were on the move.” (4) FGS2F agents, it said, were among those working at the counter-narcotics Interagency Operations Coordination Centre (IOCC) in Kabul. Where this gets closer to SOCA and its alleged involvement in the JPEL ‘kill list’, says Reprieve, comes in the management of the IOCC:
In terms of understanding the critical role played by the UK in all this, it is important to understand that the IOCC is led by both a director and a deputy director. Those positions are rotated between senior managers of the American DEA [Drug Enforcement Administration] and the British SOCA/NSA [Serious Organised Crime Agency/National Crime Agency], with no other country providing candidates. For example, from January 2008, the director was a “British LE [Law Enforcement] agent of the Serious Organized Crime Agency.” (quotes in original) (5)
The fact that there was inter-agency cooperation on counter-narcotics is, of course, not controversial. However, in October 2008, NATO defence ministers introduced a new policy: ISAF would start targeting drug traffickers and they would be added to the JPEL for killing or capture. (6) Two months later, in December 2008, said the article by the FSG2F (the American National Security Agency’s Southwest Asia Narcotics Division), the deputy commander of ISAF Regional Command South declared that narcotics trafficking was now his number one priority. The piece said that by this time, 80 per cent of all counter-narcotics operations in Afghanistan were being driven by SIGINT (signals intelligence), whereas a year previously, almost all had been driven by HUMINT (human intelligence). This was thanks, “in large part,” said the self-promotional piece, “to the efforts of an FSG2F analyst embedded with IOOC in Kabul.”
The article gives an example of a success in the fight “against the narco-insurgency,” a strike against “primary target” Mullah Multan who had “made a rare entry from Pakistan into Afghanistan” (date not given). It said Multan’s drug convoy had been targeted by an air strike within hours of him crossing the border and although he survived, he lost “over three tons of opium along with 6 of his cohorts.”
More detail on the nature of the work being carried out by the IOCC emerged in an 11 May 2009 interview with a former director, Selby Smith (January 2006 to December 2008); he was an American from the Drug Enforcement Administration who had been seconded to the IOCC. Smith said that, in Afghanistan, the military were necessary for carrying out counter-narcotics operations because “law enforcements units cannot handle the complexity and size of the drug problem by themselves. The military is needed to knock the problem down to a manageable level.”
Since December 2008, Smith said, “Law Enforcement” (not specified, but it seems to refer to international law enforcement agents probably/possibly working in conjunction with Afghan police) had asked the military for and received approval for the following assistance: helicopter lift, intelligence, cordon security, medical evacuation (MEDEVAC) and Close Air Support (CAS), ie action against hostile targets that are in close proximity to friendly forces. Smith said the US and UK were providing “most of the Special Forces” and NATO/ISAF the Close Air Support. He continued:
The [Department of Defence] policy mentions the need for a more non-traditional approach. Military involvement in [counter-narcotics] is a way to do this. The change in policy says US troops are authorized to conduct military operations against drug trafficking targets when those military operations support the stability missions in Afghanistan.
When asked whether, if the military did get involved, there would be “any negative consequences, i.e. 2nd and 3rd order effects?” the former director of the IOCC said, “Just more civilian casualties due to an errant bomb. The people shouldn’t be negatively affected because we’re there to help the Afghans under their law.”
Legal qualms from some in the military
Smith admitted there was some “reluctance from the military to get involved.” This reluctance was reported when ISAF first decided that drug traffickers could be targeted (see here, here and here). Possibly it came because, in Smith’s words, there was no longer “a need for there to be a nexus. All that’s required is a request from the Afghan law enforcement unit.” A nexus here would refer to a trafficker having to be also a belligerent in the conflict and under Taleban or al Qaeda command to be legally subject to a targeted killing. Under International Humanitarian Law, civilians, including drug traffickers, have to be “directly participating in hostilities” to lose their protected status and be legally targeted. Guidance by the International Committee of the Red Cross looking at what this phrase does and does not cover says:
… 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 conclusion was reached in 2009 by two judges in Washington DC both of whom had to decide whether the US could detain alleged financiers of the Taleban or al Qaeda in Guantanamo Bay. Judge Walton ruled that, if financial support was sufficient to make one a member of an armed force, then:
“Americans during World War II who specifically contributed to war bonds, knowing that those funds were going to be used for the military to fight the battle, could have been treated as enemy combatants.” (7)
It is argued that drug smugglers who are not also combatants must be dealt with as a civilian policing matter, ie with arrest 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. Targeted killings of suspected criminals is generally held to be a violation of the ‘right to life’. (See a discussion here).
Habib Rahman’s Case
Habib Rahman, who brought and lost the 2013 request for a judicial review into the alleged role of SOCA in targeted killings in Afghanistan, lost five relatives in an air strike in 2010. Five other civilians were also killed in the attack, all campaigners in the parliamentary elections. The US claimed they had killed a Taleban commander, Mullah Amin, but an AAN investigation, which brought together interviews with US Special Operations Forces commanders, witnesses, survivors and Mullah Amin himself, revealed how intelligence had mixed up SIM phone numbers. A phone number belonging to Habib Rahman’s father-in-law, Zabet Amanullah, an agent in the elections, had been mistakenly attributed to a provincial Taleban commander, Mullah Amin. The military had then assumed everyone in the election campaign convoy were ‘Mullah Amin’s’ fighters. Zabet Amanullah was a famous figure provincially, well known in the presidential palace in Kabul and had appeared in local media during the election campaign. Yet, there had not been even the most basic background checks on him ahead of the attack to verify that he was the intended target. In other words, the misinterpretation of SIGINT (signals intelligence) had led to the killing of the wrong man and nine of his companions, all civilians, a mistake that would have been revealed by the most precursory HUMINT, (intelligence based on information from human sources).
As mentioned before, whether or not information from the UK had contributed to the attack on Rahman’s father-in-law and the other election campaigners in 2010 is not known, but it was a clear case of civilians being killed after intelligence had placed the wrong man on the JPEL for targeted killing. Rahman’s lawyers hoped the challenge would lead to the courts examining what Britain’s role was in drawing up that list.
The aftermath – still – of the 2010 killings
Speaking after the new evidence against SOCA came to light, Habib Rahman described the continuing consequences of the 2010 air attack. It had left him looking after five households: his own, his widowed mother, his father-in-law’s and a brother’s (the other brother had been unmarried). Six years on, life remains a financial struggle, he said, and recently, the raw memories of the strike also re-surfaced:
Zabet Amanullah (his father-in-law) stood like a big mountain behind us, but now all the responsibility is on my shoulders. From every side there is pressure. After his death, his wife gave birth to a baby boy, Muhammad, and he had his six year birthday recently. But then he got ill in Takhar and we brought him to Kabul for treatment at the children’s hospital and then to Pakistan, but we failed. We lost him. If his father had been alive… he could have acted more swiftly. He could have done a lot more for his son.
The emotional impact of the deaths in 2010 had lessened over the years, but “the death of … Muhammad, 15 days ago,” he said, “somehow refreshed all the memories and feelings. It brought it all back.” As to the new evidence strengthening the case that UK police had been involved in targeted killing in Afghanistan, he said:
From the beginning until now, we’ve been asking for them to look at the evidence but no-one has listened to us. From the beginning until now, we have been running after this case and hoping those who were accused of this crime would be prosecuted. Instead, we have just faced more losses.
He had learned a lesson from the dismissal of the 2013 case, he said: “Only those who have power can get justice.”
Will the new evidence lead to fresh legal action?
If a civilian policing body like SOCA had been giving information that led to a person being identified for targeted killing, that would be a grave breach of British domestic law and International Humanitarian Law. Misleading a court of law would, in itself, also be a serious offense – if that, indeed, is what happened in 2013. Reprieve’s new report provides some additional evidence that British police were involved in drawing up the targeted killing list. It fleshes out the possible link between SOCA and the compiling of the kill list: SOCA was providing directors and deputy directors to the IOCC in Kabul at a time when it was allegedly providing intelligence for drawing up the ‘kill list’. Whether or not the new evidence will be enough to re-open Habib Rahman’s request for a judicial review is not yet clear. It appears not yet to amount to a ‘smoking gun’. However, it does strengthen the case for more investigation, and for more openness from the British government.
(1) The author of the US Senate report, Afghanistan’s Narco War: Breaking the Link Between Drug Traffickers and Insurgents, Douglas Frantz, had been working for the chair of the Senate Foreign Relations Committee, Senator John Kerry (now US Secretary of State), when, he said, 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. Later, the US would come to consider drug traffickers’ financing so fundamental to the insurgency that they could be targeted.
The Senate report said SOCA, along with the US and UK military, the US Drug Enforcement Agency and police and intelligence agencies from other countries had set up 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.’
(2) SOCA told the court the Senate committee report had misunderstood its role. It did interact with the military and pass on intelligence, as legally allowed under the UK Serious Organised Crime and Police Act, 2005, and only 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 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 the lives of others (and so such disclosure would be for the purpose of preventing a criminal offence).
(3) The leaked document is the JPEL list from August 2010 and has 699 targets. It lists the agency which nominated each target and the one responsible for executing the kill or capture operation. British involvement is inferred by ISAF Regional Command (then under British command) listed as one of the nominating bodies and a unit named as TF-42 being named as one the agencies due to carry out operations. Wikileaks had earlier revealed the existence of TF-42 as a UK Special Forces unit.
(4) The article named the following agencies: NSAW (Naval Support Activity Washington), FSU (Field Station Utah) and GCHQ, the British signals intelligence centre in Cheltenham, England.
(5) Reprieve cites a 2014 presentation on counter-narcotics efforts in Afghanistan by the US Drug Enforcement Administration to a US Senate Caucus.
(6) Reprieve says it was Britain that first wanted to target heroin processing laboratories and drug stores, in 2001, quoting a report by Gretchen Peters for the United States Institute of Peace, How Opium Profits the Taliban (August 2009),
“The drug targets were big places, like small towns that did nothing but produce heroin,” a CIA official said. “The British were screaming for us to bomb those targets because most of the heroin in Britain comes from Afghanistan, but they [the US National Security Council] refused.” Afghanistan was and is the main source of heroin in Britain. In 2001, said Peters, it was the US which held back fearing collateral damage, ie harm to civilians and damage to civilian property.
(7) Walton ruled that the US president only has the authority to detain “persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms “substantially supported” and “part of” are interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture.” Gheriby v Obama, Memorandum Opinion, Reggie B Walton (2009)
The other ruling against the US government came from Judge Bates in Hamily v Obama (2009).
This article was last updated on 9 Mar 2020