A partial admission by the defence secretary that UK special forces were present in Afghanistan risks discrediting a public inquiry investigating allegations of unlawful killings by the SAS, according to a lawyer representing victims’ families.
Richard Hermer KC said Ben Wallace had only made “a semi-concession” in a preliminary hearing on Wednesday, when the minister made a rare acknowledgment that “UK special forces” were present in Afghanistan.
The inquiry, Hermer argued, should instead directly name the SAS – the elite force at the centre of allegations of 80 unlawful killings of Afghans between 2010 and 2013 – and not doing so would “infantilise the approach of this public inquiry”.
The lawyer for the Afghan families also challenged a Ministry of Defence request to withhold the identities of all members of British special forces during the inquiry, arguing that “one cannot and should not apply a blanket approach”. Anonymity requests should be decided on a case by case basis, he added.
Their legal team has highlighted postings on LinkedIn and YouTube where individuals have identified themselves as members of the SAS – as well as three government biographies listing generals as serving in the elite force.
Earlier, Brian Altman KC, representing the MoD, said that Wallace had decided to confirm the presence of elite soldiers in conjunction with the Cabinet Office, but that doing so “is not intended to act as a precedent” in the future.
The barrister also argued that the avowal meant that identities and significant portions of evidence had to be heard in secret session and that “the MoD is expert in assessing the national security risks” involved.
Identifying individuals could put soldiers lives and their families at risk or harm, damage the work of the SAS and other special forces and it could “effectively end the individuals’ current careers,” according to paperwork put before the court by the MoD legal team.
Lord Justice Haddon-Cave, presiding, said the MoD acknowledgment that UK special forces – a term that includes the SAS and SBS and other elite units – was “a welcome development” although he added his mind was not finally made up.
At the start of the hearing Haddon-Cave also said the starting point of any public inquiry is that “as much as possible should be heard in public to allay public concern”. But he conceded that there may be “good reason in the public interest” to hear some military evidence in secret, without public, press or lawyers for third parties present.
The inquiry had translated much of its paperwork into Dari and Pashto, the judge added, and he had held meetings with counterparts in Australia and New Zealand, countries that have already inquired into unlawful killings by their special forces.
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The judge was speaking at the start of a two-day initial session of a public inquiry into alleged war crimes committed by British SAS soldiers in Afghanistan just over a decade ago. The hearings are intended to determine how much of the inquiry can be heard in public, given the secrecy that the MoD usually applies to the SAS.
Lawyers for the bereaved families are challenging the MoD’s requests for anonymity and secret hearings, in parallel with the Guardian and a group of other media organisations, including the BBC, the Times, the Daily Mail and the Sun. Evidence from the media is due to be heard in the afternoon.
Afghans were often killed at or near their homes after allegedly producing weapons when separated from their wider family by SAS soldiers, but there were five incidents where the number shot dead exceeded the number of weapons found.
One of the elite soldiers is believed to have “personally killed” 35 Afghans on a single six-month tour of duty as part of an alleged policy to terminate “all fighting-age males” in homes raided, “regardless of the threat they posed,” according a submission to lawyers representing the families of the bereaved.
A judgment is expected later this month. The hearing continues.
