The Justice Game

by Geoffrey Robertson

  ‘Stop! Stop! Stop!’ As the second maverick missile hit Call-sign 23, Squadron Leader Pearce was screaming across frequency Tad 209 at two A-10 pilots who had shot first and then condescended to tell him – their ground control – where they happened to be. As the American pilot lazily read the grid reference off his Inertial Navigation System (INS), Pearce and McSkimming and Evans – the British air controllers sitting in a horse-box sixty miles behind the lines – became alarmed. ‘Grid references’ were six-figure readings which pinpointed the plane’s exact location, and this plane was directly above an advancing British battalion. The enemy these two pilots had been ordered to engage was twenty kilometres further on. They had unloosed two missiles and scored direct hits. Either the retreating enemy had turned and sped back to engage the British, or . . .

  It could not be. The two pilots had been given the correct grid reference ten minutes ago and had read it back to ground control for confirmation. The A-10s had been ‘made available’ to the British controllers to mop up a few Iraqi tanks lying abandoned in their ditches. A flight of four F-16s had already shot them up: it was leaving as the A-10s approached. To make doubly sure that there was no confusion, the British controllers requested the F-16 leader to describe to the A-10 pilots the target area, which he did in some detail. (‘You fly over three road intersections, then there’s a police station, next you see the smoke from burning hulks and there are the targets: a few immobilised Iraqi tanks.’) The A-10 pilots went quiet for a few minutes until controller McSkimming radioed to ask whether these targets were worth another mission. The lead pilot replied that they had just destroyed part of a moving line of fifty Iraqi T-55 tanks.

  That was when the penny dropped: the grid reference was urgently requested, and the awful truth began to dawn. The A-10 pilots were twenty kilometres off course, over terrain which looked nothing like the F-16’s description. They had attacked, without obtaining clearance to fire, a target utterly different from a few tanks immobilised in ditches. Besides, British tanks had a different configuration to the T-55, and had painted ‘V’ signs on top and orange fluorescent panels on their sides, visible from the air as a warning against ‘friendly’ fire. Something – many things – had gone wrong.

  Just how wrong may be appreciated by comparing the conduct of the A-10 pilots with that of the F-16 pilots who had preceded them to the target. The lead, Kenneth Schow (Call-sign Benji) was a pilot who flew by the book. He made contact with the British controllers and received the target grid coordinates and the information that ‘friendlies’ were as close as ten kilometres away. That meant, as every pilot should know, that this was a ‘close air support’ (CAS) operation, which has special rules to prevent attacks on allied forces. The first rule is to obtain clearance before firing. Schow asked for a target description: ‘a few tanks in ditches’. He observed a column of smoke and some moving tanks (the British force and the Iraqi gun emplacement they had destroyed) and immediately checked his INS which gave him a grid reference telling him he was still twenty kilometres from the target. So he flew on that distance to another column of smoke and descended to eight thousand feet to establish visual contact with the ground so that any ‘friendly’ markings on the target would be seen before it was too late. (There were no Iraqi planes, and no anti-aircraft fire in these last few days of the war.) He read back his new grid reference to Squadron Leader Pearce, obtaining his clearance to attack the few tanks configured like T-55s which he could see lying in man-made ditches. The F-16s ‘worked the target’ for fifteen minutes, until ‘Bingo for fuel’: as Schow pulled away the British controllers asked him to talk the incoming A-10s onto the target, which he did, stating very clearly that the target was at the second column of smoke. At this point it must have seemed inconceivable to the listening air controllers that the A-10s could go wrong. Their INS grid reference would take them precisely to the spot. A totally new target – a column of moving tanks – would require careful visual inspection and checks with control before permission to attack. These protocols were fundamental in CAS missions. Why were they ignored?

  The two A-10 pilots were having a bad air day. They had taken off at noon from King Khalid military city in Saudi Arabia, and spent an hour in heavy cloud. They had missed their first refuelling rendezvous with an air tanker. Then, tasked onto a target, they swooped only to find it covered by a sandstorm. At command control, when it passed them on to the British ground controllers, their voices sounded irritable and frustrated and their responses tense. When they finally found a target – an Iraqi supply truck in a bulldozed trench – they attempted several times to strafe but missed this ‘sitting duck’ on each run. By now their frustration was intense and their fuel was low: they had only a few minutes left before they would have to return to base. As the lead pilot put it in a statement written later that day:

  Both of us made two passes and missed on every attempt, so I shifted targets trying to not ‘be stupid’. There was no observed threat in the area and that jived with what Benji had briefed us. As I came off my last strafe pass it was then, about one mile south of the trench we had tried to strafe, that I saw about fifty vehicles on the move northbound. I did a binoculars pass at eight thousand feet . . . no friendly markings were observed. By all appearances I thought they were T-55 tanks and associated support vehicles. I launched a maverick missile . . .

  In a CAS operation the rules are crystal clear. Before launching any lethal attack, these pilots had a duty to obtain and check the target coordinates from their British controllers. The target they identified was so startlingly different from the target described by the controllers and by Benji that it was essential to follow the fundamental rule, because terrain descriptions are notoriously confusing. In any event a binocular pass from eight thousand feet would clearly have shown the distinctive outline of the British tanks and their orange fluorescent panels. They were attacking near the first column of smoke, which did not ‘jive’ with Benji’s warning to fly to the second column. All this was done in ‘turkey shoot’ conditions: under a clear sky with no enemy threat from the air or from the ground. Yet in radio silence these pilots took the law into their own hands, killing nine British soldiers and leaving twelve others seriously wounded.

  The cover-up began as soon as the deaths were recognised as resulting from ‘friendly fire’. Neither the British nor American leaders wanted this incident to spoil their triumph. General Schwartzkopf (whose care of his own men was legendary) said, ‘There’s no excuse for it, I’m not going to apologise for it’. But he went on to refer to bad weather, and ‘the extreme differences in the language of the forces’ (English and American English in this case) and ‘very, very close combat’ in the area. The little white lies to the parents started in the official condolences letter a few days later. The first came from HRH the Duke of Kent, Colonel in Chief of the Fusiliers, who said each soldier ‘was killed by an Allied airborne attack in very bad weather and visibility’. When the families heard from survivors that the weather was good and visibility perfect, they were angered by the Duke’s dismissive palliative ‘you have the consolation of knowing that he died on active service for his Queen and country’. This ‘Colonel in Chief’ was safe in St James’s at the time of the incident, but these incorrect excuses were echoed by others. The commanding officer of the 4th Armoured Brigade wrote that ‘the incident occurred during particularly confused fighting when it was difficult to define exactly where we and the enemy actually were’ (not with grid references it wasn’t), while the battalion commander wrote ‘we were in the midst of battle at the time . . . there was much confusion . . . there is no bitterness here over what happened to us’. There was, of course, aching bitterness and real fury, amongst the men of the 4th Brigade and the middle-ranking officers who cared for them. They could not forget the victory roll.

  But why mislead grieving parents? In letters that were genuinely meant and otherwise considerate, but which gave them every reason, once they had spoken to their sons’
comrades, to suspect a cover-up? It struck me as the ‘Ron Smith syndrome’ all over again – the attitude that you can make soothing noises to the working classes about their children’s death, and they won’t have the clout to find out the awkward truth. What once again was lacking was any sense of what ‘justice’ requires so that the grief of a bereaved parent may run its course. When a tragedy of this kind inexplicably occurs, there must be a full inquiry – for the sake of future combatants as well as for the sake of families who want reassurance that their sons did not die in vain.

  A Board of Inquiry must by statute be held into deaths on active service. Its report was claimed by the government to be a top secret. The families were sent a summary of its conclusions, under cover of a letter which Tom King – the Secretary of State for Defence – did not even bother to sign. ‘He very much regrets,’ said an official letter signed by a secretary in his office, ‘that, in spite of all our efforts, the Board could not resolve the conflict of evidence over why the aircraft were in the wrong place and why two Warrior vehicles were misidentified. It is clear that all UK and USAF personnel were striving to achieve their individual tasks. Given the understandable pressure of events on all those involved, it is inevitable that, at some stage, difficulties may arise.’ This became part of the official summary of the Board’s findings presented to Parliament by Tom King, who added that there had been a conflict of evidence presented by the A-10 pilots and by their British controllers, and the whole tragedy must be put down to the difficulties which may arise when individuals are under pressure in a fast-moving battle. The full report was secret because ‘it has been the practice of successive governments not to publish reports of this kind’. (King did not disclose that the full report had been sent to the Americans weeks before.)

  The simple truth was that this so-called ‘inquiry’ sat briefly on 15 May at an air base near High Wycombe, and only heard three British witnesses. There had been no ‘evidence presented’ by the A-10 pilots. All the Board was shown were the short statements they wrote on landing. And it was not clear at all that the A-10 pilots were ‘striving to achieve their individual tasks’ – the attack on the Warriors was nothing like the task they had been given. There was no ‘fast-moving battle’ at the time, and no ‘pressure of events’ or other ‘difficulties’. The summary misled Parliament both about the incident and the inquiry into it.

  The Prime Minister, a few months later, was shamed by some media coverage into writing another letter to the parents, which he took care to sign personally. John Major’s letter excused the delay ‘because it was very important for the Board to pursue all lines of investigation so that the clearest possible account could be established . . . Like us, the Americans wanted to make sure that there was no information that had been overlooked and that everything had been made available to the Board of Inquiry.’ This was nonsense. The Americans had withheld the most crucial evidence – the testimony of the pilots themselves – by refusing to allow them to attend the Board of Inquiry, which had been so cavalier in its investigation that it failed to insist upon their presence. Major continued: ‘I do appreciate that your grief may have been lessened if the Board had been able to allocate responsibility for the accident, but the information available simply does not enable this to be done.’ That, of course, was because the pilots were never seen or questioned. Major nonetheless went on to defend them, on the basis that since ‘they believed that they had positively identified enemy targets on the ground, in the circumstances they would have seen no need to make further contact with the [British controller] before attacking’. What is quite breath-taking about this passage is that it ignores the first rule of close air support operations, namely that no lethal attack should be launched without receiving a target coordinate. Here was the British Prime Minister, making a bogus excuse for the negligent conduct that had killed nine young Britons.

  I was approached to act for all the parents at the forthcoming inquest – their final opportunity to establish the truth. I was reluctant: my father had been a wartime fighter pilot and I had no wish to accuse the A-10 airmen of an ‘unlawful killing’. But Denis McShane, an MP who had taken up the parents’ cause, asked me to meet them – and that changed everything. They have been described and have described themselves as ‘just ordinary people’, some from families who had given generations to the army. I do not find anyone ‘ordinary’ and what was so moving about these parents was their continuing torment, not only from the loss of their sons, but from being treated as though that sacrifice did not matter. They had been palmed off with false information and an inadequate investigation, then patted on the head by the Prime Minister and told to put up, shut up and cheer up. Against the all-important political purpose of not upsetting the Americans, they were nothings. There is no legal aid for inquests, and barristers are entitled to refuse to work for nothing. I would not be working for nothings but for men and women who had sacrificed their children and were asking only for justice in return.

  The body bits and pieces had been landed at Brize Norton, an airbase within the jurisdiction of the Oxford coroner. He announced that he would sit without a jury and hear the inquest in one day. Mark Stephens, by now a leading litigation solicitor, was persuaded to bring his firm into the fray, with Keir Starmer as my junior: they threatened High Court action and as a result the coroner changed his mind. He summoned a jury, and conceded that the case might last for six days. He was a good deal more accommodating than some other coroners: he sent us a list of witnesses, and the MOD at the last moment supplied us with their statements. The MOD was represented by the Treasury solicitors, and fielded a large team of seven lawyers. They were keen to establish that no blame could be attached to the British ground forces or to the air controllers but they baulked at the logical conclusion, which was that the A-10 pilots had been responsible for the killings. They wanted a verdict of accidental death. That had been the verdict of the Air Force Board, and of the British government, confirmed by the Prime Minister himself. As for the United States, its verdict had been delivered in Haig-speak by its deputy Commander-in-Chief:

  No dispersions [sic] can be cast on either side [i.e. on US pilots or UK controllers]. Both were operating at a hectic combat pace on a rapidly changing battlefield where the fog of war is inevitable at some point. Many factors and misunderstandings led them down the primrose path, but the bottom line is that they were not on the same sheet of music and that led them to disaster . . . we believe there is little to be gained by further investigating this incident.

  What was to be gained by further investigation was apparent from the first day of the inquest at Oxford Town Hall. The public seats were packed with the families of the deceased, listening with fierce intensity as their sons’ comrades and officers testified to the moments when the missiles hit. During breaks in the hearing, witnesses and parents fell into each other’s arms, pooling emotions: the survivors as much as the relatives needing to articulate, simply and directly, the horror and the heroism obfuscated until now by the official reports. Fusilier Halliwell, who had risked his own life in an effort to save their sons, was the first witness. But the real question for everyone in court was: where were the American pilots? I made a public request for them to come and explain the ‘staggering discrepancies’ between their initial debriefings and the evidence of the British controllers. I pointed out that ‘it is vital to hear from the A-10 pilots to find out what information they received and why they fired. Nothing can happen to them: one would think it better for them to do the decent and humane thing, rather than face accusations of cowardice.’

  It was a gauntlet intentionally flung at the outset, when I still had an open mind about whether the British controllers could have been partly responsible (Pearce had handed over the tasking of the A-10s to McSkimming at a vital time). I thought the pilots could and should be defended. The MOD knew their names, but refused to tell me or the coroner. The United States had not even instructed lawyers to appear on the pilots’ b
ehalf – a calculated snub to the coroner’s inquiry. It had sent a USAF lawyer, Colonel Robert Bridge, merely to observe: he sat in court flanked by two armed officers from the Police Special Protection Squad. This was a stupid insult to the parents, who were the last people in the world to offer violence to anyone. The Colonel was confronted outside the court, in the glare of television cameras. ‘My son is dead,’ pleaded Peter Atkinson. ‘Why won’t the pilots come over? Let them come. Nothing is going to happen to them.’ The cringing Colonel could only mutter ‘I’m sorry’ and add that it was a matter for the pilots’ personal choice. President Bush, a few months before, had received Peter and other parents at the White House and publicly promised there would be ‘no hiding place from the truth’. For the American government, in the light of that false promise, this was a deeply unattractive scene. For all the carefully contained expressions of sorrow and regret, the reality was expressed in an unguarded moment by USAF Commander ‘Chuck’ Horner: inquiries into ‘friendly fire’ deaths, he said, were like ‘picking at scabs’.

  The authorities desperately wanted the inquest to end quietly, and with a verdict of ‘accidental death’. The coroner appeared to share that wish: he had been in contact with the Pentagon, which had ‘taken the view that it was inappropriate for them to interfere in a British inquest, or send anyone to answer questions’. I despaired of him at first as a mouse who would not roar at the Americans – but would anything more than a squeak come from Malcolm Rifkind QC, our Minister of Defence, fortuitously in Washington at the time of the inquest? There were some who thought that he might ask, in the interests of justice, that the pilots be sent to explain themselves at Oxford, where the evidence against them was beginning to mount.